Custom, Excise & Service Tax Tribunal
Cc, Chennai vs M/S. Medreichsterilab Ltd on 27 August, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT CHENNAI C/23/2005 (Arising out of C.CUS.No. 641/2004 dated 31.08.2004 passed by the Commissioner of Customs (Appeals), Chennai). CC, Chennai : Appellant Vs. M/s. MedreichSterilab Ltd. : Respondent
Appearance Ms. Indira Sisupal, AC (AR) For the applicants Shri N. Anand, Adv., For the respondent CORAM Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member FINAL ORDER: 41210 / 2015 Date of Hearing : 27.08.2015 Date of Pronouncement :
Per: P.K. Choudhary In this case the Commissioner of Customs (Appeals) vide OIA C.Cus. No. 641/2004 dated 31.08.2004 had allowed the assessees appeal with consequential benefit. The Commissioner (Appeals) in his order has observed that the importer is entitled for the benefit of the customs notification No. 21/2003 dated 01.03.2003 and the refund can be granted if its proven under cirtification of ACCE that the impugned goods were used fully for intended purposes as per the Registration Certificate. The Revenue being aggrieved by the impugned order of the Commissioner (Appeals) has filed the present appeal.
2. The brief facts of the case are that M/s. Medreich Sterilab Ltd., Bangalore, the respondent assessee had imported 325 kgs. of Chlorohydrate Aniodorone and cleared the goods filed under the Bill of Entry No. 550344 dated 28.06.2003. On assessment under CTH 29329900 and padi duty @ 25%+16%+4% and paid Rs. 18,84,953/-. Later on the assessee claimed that they were eligible for concessional rate of duty @ 5% under Sl.No. 80(B) of Customs Notification No. 21/2003 dated 01.03.2003 (Sl.No. 3 of list 3) and filed the refund claim of Rs.16,99,426/-. The respondent assessee further claimed that due to non-availability of requisite documents, and pressure of time, they cleared the goods by payment of duty on merits at the time of clearance.
3. Dy. Commissioner of Customs, Group-II, AIR Cargo Complex, vide OIO No. 173/2001-DC-ACC dated 26.02.2004, rejected the assessees refund claim on the ground that they have not registered themselves and/or filed any application for the imports on the date of clearance/import and hence have not complied with the conditions of the Customs (Import of goods on concessional rate of duty for manufacture of excisable goods )Rules, 1996 and Condition No.5 of Customs Notification No. 21/2003. Aggrieved by the above OIO the importer preferred appeal before the Commissioner (Appeals) who vide OIA, C.Cus. 641/2004 dated 31.08.2004 allowed the appeal by annulling the order in original.
4. Ld. AC, AR reiterated the grounds of appeal and filed copies of Notification No. 36/96-Cus (N.T) dated 23.07.1996 as amended of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 and a list containing effective rates of basic and additional duty for specified goods falling under chapters 1 to 99. He further mentioned that as per the customs (IGCRDMEG) Rules, 1996, Rule 3 regulation stipulates that a manufacturer has to obtain a registration and has to file an application to obtain the benefit. He further submits that Rule 3 & 4 are condition precedent to avail the benefit under Notification No. 21/03. The revenue in its grounds of appeal has mentioned that It therefore appears that the importers have misrepresented the facts before the Central Excise Authorities by stating the the intend to import the material (in future), whereas they had already imported and cleared the material on payment of duty on merits. The Ld.AR relied on the following decisions in this regard.
1. Samtel Color Ltd. Vs. CCE, Meerut 2000 (126) ELT 1256 (Tri.)
2. CCE, New Delhi Vs. Hari Chand Shri Gopal 2010 (260) ELT 3 (S.C.)
5. The Ld. Counsel appearing on behalf of the respondent assessee mentioned that they have claimed refund under Sl.No. 80B and they are also covered under Sl.No. 80A. He further submits that they have fulfilled all the conditions as required under Sl.No. 80 B subsequently, and the same is only technical in nature. He submits that there is no need to furnish a certificate of registration 80C before importation and the same can be submitted later on at the time of filing the application for refund and as the same is only a procedural requirement. He relied on the following decisions:
1. CIPLA Ltd. Vs. CC, Chennai 2007 (218) ELT 547 (Tri.-Chen.)
2. CCE, Chandigarh-I Vs. J.C.T. Electronics Ltd.
2011 (267) ELT 41 (P & H)
6. On hearing both sides and on perusal of records, we find that the Bill of Entry No. 550344 was filed on 28.06.2003, and the imported consignment was cleared on 30.06.2003. Registration under Rule 3 was done on 14.07.2003 and the application under Rule 4 was filed on 18.07.2003. All these requirements are merely procedural and the intent of these statute is to ensure that the use of the goods imported by the manufacturer are for the intended purpose as declared in the application. Rule 3 & 4 of (IGCRDMEG) are reproduced here for understanding the statutory interpretation.
Rule 3. Registration (1) A manufacturer intending to avail of the benefit of an exemption notification referred to in sub-rule (1) of rule 2, shall obtain a registration from the {Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise} having jurisdiction over his factory.
(2) The registration shall contain particulars about the name and address of the manufacturer, the excisable goods produced in his factory, the nature and description f imported goods used in the manufacture of such goods.
(3) The {Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise} shall issue a certificate to the manufacturer indicating the particulars referred to in sub-rule (2).
Rule 4. Application by the manufacturer to obtain the benefit.
(1) A manufacturer who has obtained a certificate referred to in sub-rule (3) of rule 3 and intends to import any goods for use in his factory at concessional rate of duty, shall make an application to this effect to the {Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise} indicating the estimated quantity and value of such goods to be imported, particulars of the notification applicable on such import and the port of import.
(1A) The manufacturer may, at his option, file the application specified under sub-rule (1), either in respect of a particular consignment, or indicating his estimated requirement of such goods (for a period not exceeding one year).
(2) The manufacturer shall also give undertaking on the application that the imported goods shall be used for the intended purpose.
(3) The application shall be countersigned by the {Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise} who shall certify therein that the manufacturer is registered in his office and has executed {a bond to his satisfaction} in respect of end use of the imported goods in the manufacturers factory and indicate the particulars of such bond.
7. Para 8, 9 & 10 of the order of the Commissioner (Appeals) is reproduced for appreciation of the statutory interpretation.
8. Additionally on plain reading of the Customs (IGCRD) Rule, 1996, I find that there is nothing therein which cannot be done after the importation )but before the use of the goods)and which could and should have been done only before the importation.
For example, it requires that Asst. Commissioner of Customs can allow the benefit of the exemption notification to the importer on the basis of the application countersigned by ACCE and after debiting the quantity and value of imports in that application.
Similarly Asst. Commissioner, Customs, can forward a copy of Bill of Entry containing the particulars of import, the amount of duty paid etc., and ACCE in turn can acknowledge the receipt of such intimation received from the Asst. Commissioner, Customs.
Last but not the least ACCE is required to ensure that the use of the goods imported by the manufacturer are for the intended purposes as declared in the application.
All the above requirements are merely procedural.
9. Thus the importer is entitled for the benefit of the notification and refund can be granted if it is proven under certification of ACCE that the impugned goods were used fully for intended purpose as per the Registration certificate.
10. The OIO is annulled and appeal allowed with consequential benefit. We find that the goods imported by the respondent assessee were bulk drugs and the same are covered under Sl.No. 80 B of Notification No. 21/2003-Cus. Therefore, the impugned order of the lower appellate authority does not suffer from any irregularity and the same is upheld and the appeal filed by the Revenue is rejected.
(Order pronounced in the open Court on )
(P.K. CHOUDHARY) (R. PERIASAMI)
JUDICIAL MEMBER TECHNICAL MEMBER
BB
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