Customs, Excise and Gold Tribunal - Delhi
Haryana Plywood Industries vs Collector Of Central Excise on 28 July, 1992
Equivalent citations: 1993(63)ELT235(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. The appellant is aggrieved with the order of Collector (Appeals), Calcutta. The appellants had imported 62 crates of Wood Rough peeled but not further prepared item falling under Central Excise Tariff Item 4408.90 read with Notification Nos. 62/85, dated 17-3-1985 and 311/86, dated 13-5-1986 attracting basic Customs duty at 10% ad valorem only. The goods were shipped from Singapore by vessel 'Clipper Flame' which berthed at Calcutta Port on 3-10-1986. The Notification Nos. 439/86-Cus. and 440/86-Cus. which had the effect of enhancing the Customs Duty and Auxiliary Duty to 60% of ad valorem and 40% of ad valorem respectively were issued on 6-10-1986. The appellant filed Bill of Entry on 8-10-1986 and the assessments were made at enhanced rates by implementing the above notification issued on 6-10-1986 instead at 10% under Notification Nos. 62/85 and 311/86. Therefore, the appellants filed refund application seeking refund of Rs. 3,62,398.39 being the excess duty paid under protest. The Asstt. Collector rejected the refund application on the ground that the importer appellant had failed to furnish certain documents such as, copies of invoice (signed by Customs), packing list and the original copy of the Bill of Entry. On appeal, the Collector (Appeals) had set aside the matter and remanded the case. However, the Asstt. Collector again rejected the claim holding that the Party should obtain an order of assessment from the Group concerned and file a claim before Collector (Appeals). Before the Collector (Appeals) the appellant produced a letter dated 18-8-1988 from Govt. of India, Deptt. of Publication, Book Deptt. to show that they had received the concerned notification for publication on 29-1-1987 and put for sale on the same day. It is the appellant's case that the date of sale should be considered as the effective date for enforcement of the notification, which changed the rate of duty. It is their grievance that the Controller of Publication vide his letter dated 26-12-1988 informed them that the supply of the information regarding date when the Gazette containing the notification was put on sale, has since been discontinued on the advice of the Commissioner of Tax Research, C.B.E.C. The appellant's case is that the date of sale of the notification to the Public should be considered as the effective date of the notification coming into operation. The learned Collector (Appeals) has rejected the appellant's argument and has held that the rate of duty has to be the rate which was prevailing on the date of presentation of Bill of Entry i.e. 8-10-1986 in terms of provisions containing in Section 15(a) of the Customs Act, 1962. He has further held that the appellant has not placed any documentary evidence from the appropriate authority to prove their contention.
2. We have heard Shri R.K. Jain Learned Consultant for the appellant and Shri J. N. Nair, learned JDR for the revenue.
3. Shri R.K. Jain submitted that in the appellant's own case reported in 1991 (51) E.L.T. 119, the same question came up for consideration and the department in that case admitted about the Notification No. 439/86-Cus., dated 6-10-1986 being justified in the Gazette of India dated 6-10-1986 but made available to public by sale on 13-10-1986. On the basis of the admission the Bench had held that the demand of the amount as per new Notification No. 439/86-Cus., dated 6-10-1986 was not justified. He further contended that the new rate would be effective only from the date on which the Gazette containing the notification was put on sale. Therefore, in the present case the rate of 10% as per Notification Nos. 62/85, dated 17-3-1985 and 311/86, dated 13-5-1986 should be charged and the excess duty paid should be ordered to be refunded. He also relied on the ruling rendered by the Calcutta High Court in the case of Raj Kumar Kedia v. Collector of Customs - reported in 1991 (55) E.L.T. 481. On a similar issue Shri J. N. Nair, learned J.D.R. reiterated the findings of the Collector (Appeals). He submitted that Bench in order No. 513/91-D in the case of Khattar Enterprises v. Collector of Customs, Calcutta has confirmed the date of sale of the notification in question as 13-10-1986.
4. We have carefully considered the submissions of both the sides. In the case of Haryana Plywood Industries v. Collector of Customs - reported in 1991 (51) E.L.T. 119, the Department has admitted the fact of putting on sale the notification in question on 13-10-1986 and also on the basis of said admission and ratio of this case has already allowed on appeal of Khattar Enterprises v. Collector of Customs, Calcutta as per Order No. 513/91-D. Now, it is well settled that the date of putting on sale is the date on which the new notification comes in force as held in Jagjit Singh v. State of Rajasthan - AIR 1968 Raj. 24 and Salem Co-operative Sugar Mills Ltd. v. CCE - reported in 1987 (30) E.L.T. 599. Both these rulings have been taken note of in the appellant's own case reported in 1991 (51) E.L.T. 119, in respect of the notification in question. Therefore, applying the ratio of these cases, the appellants are entitled to succeed and their refund claim is admissible and the excess duty paid in respect of the Bill of Entry in question has to be refunded. The Deptt. shall expeditiously refund the same. Appeal allowed.