Customs, Excise and Gold Tribunal - Ahmedabad
Gujarat Ambuja Exports Ltd. vs Cce on 12 October, 2007
Equivalent citations: 2007(123)ECC80, 2007(149)ECR80(TRI.-AHMEDABAD), 2008(222)ELT427(TRI-AHMD)
ORDER Archana Wadhwa, Member (J)
1. The appellant herein M/s Gujarat Ambuja Exports Ltd. is, inter alia, engaged in the business of solvent extraction of oil seeds, refining and processing of oils including crude palm oil and manufacturing of fatty acids.
For the manufacture of industrial fatty acids, the appellants are entitled to import crude palm oil at concessional rate of duty in terms of import of goods at concessional rate of duty for manufacture of industrial fatty acids read with Notification No. 21/2002-Cus dt. 1.3.2002 and Notification No. 66/2004-Cus dt.9.7.2004. During the period involved in the present appeal, they got themselves registered with the customs and imported crude palm oil at concessional rate.
2. Based upon intelligence that the said imported crude palm oil was not being used by the appellant for manufacture of industrial fatty acid i.e. the declared product but the same was being used for the purposes of edible products like refined oil/vegetable products, their factory was visited by DRI officers, who conducted various checks and verifications and scrutinized the records. Statements of various persons were also recorded.
3. As a result of the investigations made, appellant were issued a show cause notice dt.24.3.03 alleging that 84,35,816 MT of crude palm oil (industrial grade) imported by them at concessional rate of duty in terms of the Notification No. 21/2002-Cus was not entitled to the benefit in as much as the same has been issued for the purposes other than for which exemption was availed by them. In other words, the Revenue alleged that the said imported crude palm oil has been used for manufacture of palm fatty acid distillate (hereinafter referred to as PFAD) which cannot be held to be industrial fatty acid for the manufacture of which they were not having any facility for manufacture of industrial fatty acid. It was also alleged that they have used distillation process on the said imported crude palm oil / vanaspati and which has resulted in emergence of refined palm oil to the extent of 75% and by product, palm fatty acid distillate, to the extent of 25%, which product cannot be considered as industrial fatty acid. As such, the benefit of notification 21/20-02-Cus, which prescribed concessional rate of duty to imported crude palm oil subject to the condition that the same was used for manufacture of industrial fatty acid, was alleged to be wrongly availed by the appellant. Accordingly, notice proposed to recover differential duty of Rs. 7,89,89,868/- (Rupees Seven Crores, Eighty Nine Lakhs, Eighty Nine Thousands, Eight Hundred and Sixty Eight only) along with confirmation of interest and imposition of penalty.
4. The said show cause notice stands culminated into order passed by Commissioner, Central Excise, Ahmedabad confirming the demand of duty and interest, as proposed in the notice along with imposition of personal penalty of identical amount in terms of Section 114A of Customs Act, read with Section 112 of the Act. The said order is impugned before us.
5. We have heard learned Advocate Shri Nankani appearing for the appellant and Smt. A. Vasudev, Jt. CDR appearing for the Revenue. Both the written submissions stand filed in support of their pleas and contentions raised at the time of hearing, which we have gone though, apart from going through the impugned order.
6. The dispute in the present appeal relates to import of crude palm oil (non-edible), in terms of Notification No. 21/2002-Cus, dt.1.3.02, which provided concessional rate of duty of 25%, subject to certain specified conditions. In as much as the entire dispute revolves around the above notification, we would like to reproduce the relevant entries Sr. No. 30 of the same for ready reference.
SN Chapter or heading No. or subheading No. Description of goods Standard Rate Addl. duty rate Con. No. 30 15 (A) All oils, other than edible grade, having Free Fatty Acid (FFA) 20% or more falling under heading 1507, 1508, 1509, 1510, 1511, 1512, 1513, 1514 for the manufacture of soaps, industrial fatty acids and fatty alcohol.
(B) All oils, other than edible grade, having Free Fatty Acid (FFA) 20% or more falling under heading 1507, 1508, 1509, 1510, 1511, 1512, 1513, 1514 or 1515.
20% 65%
-
-
5-
Conditions 5 of Annexure to the said notification is to the effect that if the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. There is no dispute that the above Condition 5 stands duly complied with by the appellant.
7. The manufacturing process adopted by the appellant is distillation process, which results in emergence of about 25% of palm fatty acid distillate (PFAD) and balance of about 75% as a refined palm oil. In terms of the above entries of Notification No. 21/2002-Cus, dt. 1.3.02, the crude palm oil (non-edible grade) is entitled to the benefit of the concessional rate of duty if the same is used for manufacture of, inter alia, industrial fatty acid. The Revenue's objection to the grant of the benefit of notification, as recorded by the Commissioner in his impugned order is two fold: (1) that the PFAD manufactured by M/s GAEL is not industrial fatty acid and (2) even if it is admitted that the PFAD is industrial fatty acid, it is only a small by-product resulting from the manufacture of the main products viz. refined edible oils and vanaspati and, therefore, it cannot be said that the CPO was imported for the manufacture of industrial fatty acids.
8. The first question to be decided by us is as to whether the palm fatty acid distillate can be considered to be industrial fatty acid. The Revenue has relied upon the test report of Chemical Examiner, Vishakhapatnam Dr. T.A. Sreenivasa Rao, which may be reproduced here below for ready reference.
Report: The sample is in the form of pale yellow soft solid mass. It is a by-product of physical refining of palm oil. It is palm fatty acid distillate.
Dr. T.A. Sreenivasa Rao, has also annexed a detailed technical opinion report and reached his final conclusion as under:
1. Starting material Industrial grade palm oil is not used entirely for non-edible purposes.
2. Refining of non-edible oil (industrial grade palm oil) to produce edible oils is not allowed under PFA Act, 1954.
3. Sample u/r is not produced by industrial/non-edible processing of oil.
4. Sample u/r palm fatty acid distillate is a by-product in refining of non-edible oil.
5. Sample is other than palm fatty acid/fatty acid distilled as it is not obtained by process mentioned in IS 12067:1987, HSN Explanatory Notes, Bailey or other reference.
6. According to the available literature, Test conducted, in my opinion samples u/r may not merit consideration as industrial fatty acid.
A sample was also sent to Shri Narendra Kumar, Chemical Examiner, Customs House Laboratory, Kandla who has given his test report as under:
The sample is in the form of pale cream soft mass. It has the characteristics of palm fatty acid having FFA (as palmitic acid) = 87.1% by wt and Acid value 190.87.
Revenue has further relied upon the statement of Customers to whom the said palm fatty acid was sold. As per the statement of representative of M/s Godrej Industries Ltd. and M/s Aquagel Chemicals (P) Ltd., palm fatty acid distillate has to go extensive further processing before the same was converted into fatty acid. Shri Mukerjee, DGM of M/s Godrej Industries Ltd. has clarified in his statement recorded during the course of investigations that the said palm fatty acid distillate was obtained by them from the appellant, was set to oil pre-treatment plant for improving the clarity and for removal of sediments and particles if any. The treated fatty acid was then set to fat splitting in fat splitting plant, unconverted Glyceroids present in palm fatty acid distillate were converted into free fatty acid (crude fatty acid) and glycerine at a designed pressure; in the second step, crude fatty acid was hydrogenated with hydrogen in presence of nickel catalyst; in hydrogen reaction all the double and triple bonds were converted into single bond; the hydrogen required for hydrogen reaction was produced by steam reforming of natural gas; after hydrogenation reaction catalyst was removed by filtration in leaf type filter and colour was improved by bleaching with the activated carbon and diatomite earth in a bleacher, finally filtered and bleached hard fatty acid was homogenized and flaked as un-distilled stearic acid; in case of distilled stearic acid, hydrogenated fatty acid was distilled in distillation plant and distillate produced was homogenized and flaked as distilled stearic acid; PFAD could be used for the manufacturing of different types of fatty acid (stearic acid and fatty alcohol); PFAD could also be used for the manufacture of soaps.
Similarly, Commissioner in his impugned order has also relied upon the statement of Shri G. Rane, Production Manager which is to the effect that the main raw material used in the manufacturing process of soap and raw materials used, stated that the main raw material used in their factory was oils of different nature i.e. crude palm stearin, palm kernel oil and PFAD etc.; they made blend of oil by mixing various oils in different proportion; after that blend was split (by hydrolysis) to make crude fatty acids; they distilled those crude fatty acids into pure grade (soap grade) fatty acids; then they converted those pure grade fatty acid into soaps noodles by saponification (using caustic soda); those noodles were used as raw material for making finished soap tablets by adding perfume, colour etc.; PFAD was palm fatty acid distillate and contained different proportions of fatty acids like capric, lauric, myristic, palmitic, stearic, oleic and linoleic, lenolenic; PFAD was required to be further processed to obtain required soap grade fatty acid at their factory; On being asked about the purchases of PFAD from M/s GAEL, Kadi, he stated that their company purchased PFAD from different suppliers and also imported PFAD; their commercial department told him that they purchased 171.1 MT of PFAD from M/s GAEL, Kadi during 01.11.04 to 19.12.04; he submitted the details of purchases by them; On being asked about the use of palm fatty acid distillate in their factory and whether soap could be manufactured from that directly, he stated that they used the PFAD in blend making; they split the blend and then distilled to get soap grade fatty acid which went for soap making; they were not using PFAD directly for soap making.
9. MP As against the above evidences relied upon by the Revenue, to conclude that PFAD cannot be considered as industrial fatty acid, applicant has strongly contended that the PFAD is nothing but fatty acid. It has been explained to us that the expression "palm" has been used because fatty acid is of palm oil and the expression "distillate" has been used because such fatty acid has been obtained by the process of distillation. As such, Shri Nankani submits that the palm fatty acid distillate is nothing but fatty acid. He submits that the HSN explanatory note to Heading 38.23 clearly support the appellant's contention that PFAD is nothing but fatty acid. The said note expressly covers fatty acid distillate obtained from fat and oil and which has been subjected to vacuum distillation in presence of steam as part of the refining process. Shri Nankani also submits that they have been clearing the palm fatty acid distillate on payment of duty of excise under heading 38.23, which covers fatty acid and no objection was ever raised by the Revenue for classification of the said production under Chapter Heading 38.23. As such, he submits that when the duty of Central Excise on PFAD under Heading 38.23 was not disputed by the Revenue for the purposes of payment of Central Excise duty; it is not open to them to contend to the contrary that PFAD is not industrial fatty acid. It has also been contended before us that Notification does not refer to any particular method or manufacture of industrial fatty acid and the Revenue's objection to the use of method of distillation to support their case that industrial fatty acid was not manufactured by them or resultant PFAD is not industrial fatty acid, is neither proper nor important. Reliance has been placed upon the various decisions of the Tribunal.
Further clarifying, Shri Nankani submits that by subsequent Notification No. 11/2006 dt.1.3.06, while retaining the entry and renumbering Clause 'A', a new clause was added to provide for manufacture of IFA by a manufacturer having plant for splitting up such oils into fatty acids and glycerols. It is, therefore, submitted that only after amendment, the subsequent Notification for the first time, specified the manufacturing process and until then there was no such condition. The subsequent Notification does not have retrospective effect and is not clarificatory in nature. In any case, as aforesaid, since the erstwhile Clause 'A' has been retained and renumbered as Clause 'B' which shows that a new entry with new conditions have been inserted for the first time, while the old entry has remained. It is true in the subsequent Notification that the benefit of exemption as a whole has been denied to CPO altogether, but that does not nullify the submissions made therein above, since the Notification continues to be applicable to all other oils.
As regards buyers, he submits the fact that they undertake certain further processes does not mean that what was sold by the Appellants is not IFA (PFAD). Though these buyers have averred that they carried out splitting because of addition of other oils to the PFAD purchased from the Appellants, the PFAD sold by the Appellants to them did not cease to be IFA. Apart there from, the Appellants have sold PFAD to almost 50 other buyers who have used the same as IFA and therefore, the statements of 2 buyers do not prove that the PFAD manufactured by the Appellants is not IFA.
Shri Nankani further submitted that during the relevant period, the Appellants imported about 28000 MTs of CPO (Edible Grade) and cleared the same on payment of higher customs duty of 65%. This quantity of about 28000 MTs was used to manufacture Refined Palm Oil (RPO). This proves beyond doubt that the goods in question i.e. CPO (NEG) was not imported to manufacture Refined Palm Oil but to manufacture IFA. A statement setting out details of the imports of CPO (Edible Grade) during the period April 2004 to March 2005 and April 2005 to Sept 2005, was also produced on record.
The bonafides of the Appellants have also been established by the fact that the RPO which was obtained during the course of distillation to manufacture PFAD, confirmed to standards of Prevention of Food Adulteration Rules, 1956. This aspect has been verified and confirmed by the jurisdictional authorities to the satisfaction of the DRI who investigated the present case.
The reliance on the Test Reports of the Chemical Examiner, Visakhapatnam, Dr. Rao and the Chemical Examiner, Kandla, Shri Narendrakumar is totally misplaced and misconceived. The Test Report and technical opinion of Dr. Rao are self-contradictory. Dr. Rao's answers in the cross examination are evasive and Dr. Rao has avoided reference to the HSN. Mr. Narendrakumar admits in his cross examination that PFAD is also an IFA. It is, therefore, submitted that the reference to the evidence of two chemical examiners does not at all support the allegations contained in the Show Cause Notice or the findings in the impugned order.
10. After carefully considering the submissions made by both sides on the legal issue, it is seen that the Revenue's stand that PFAD cannot be considered as industrial fatty acid is mainly based upon the test report given by Shri Rao and Shri Narendra Kumar, Chemical examiners. We find that the said test report only declared the goods as PFAD to which there is no dispute. The appellants have also named the product as PFAD. The question is as to whether such PFAD is industrial fatty acid or not. The cross examination of the two chemical examiners, especially of Shri Narendra Kumar is to the effect that vacuum distillation is one of the method used to manufacture industrial fatty acid. Neither of them has denied in categorical term that "distillation is also one of the method employed by various manufacturers to obtain the industrial fatty acid." As such, we need to look into the other avenues to find out as to whether the PFAD can be considered as industrial fatty acid or not.
HSN explanatory note to Chapter 38 are to the following effect.
Industrial monocarboxylic fatty acids are generally manufactured by the saponification or hydrolysis of natural fats or oils. Separation of solid (saturated) and liquid (unsaturated) fatty acids is usually done by crystallization either with or without solvent. The liquid part (commercially known as oleic acid or olein) consists of oleic acid and other unsaturated ratty acids (e.g. linoleic and Ibolenic acids) together with small amounts of saturated fatty acids. The solid part (commercially known as stearic acid or stearin) consists mainly of palmitic and stearic acids with a small proportion of unsaturated fatty acids.
This heading includes, inter alia:
(5) Fatty acid distillate, obtained from fats and oils which have been subjected to vacuum distillation in the presence of steam as part of a refining process. Fatty acid distillate is characterized by a high free fatty acid (ffa) content.
As is clear from above, the process of saponification or hydrolysis of natural fats or oils may be a process generally employed for the purposes of manufacture of fatty acids. But the same is not the "only" process to obtain industrial fatty acids. The expression used "generally" can not be equated with "only" or "specifically" or "exclusively". However, it is seen that as per HSN explanatory note, the fatty acids distillate are also covered by said chapter. Commissioner's objection to adoption of HSN explanatory note is that though in the matter of tariff classification HSN is relied upon and is generally to be followed, but the same can not be consulted for guidance for the purposes of interpreting notification. As such, he has observed that for the purpose of interpreting notification No. 21/2002, the proper test is trade parlance and normal meaning which a knowledgeable person would attach to the term and not necessarily what has been laid down in the HSN. We are afraid, we do not find ourselves in agreement with the above views of the Commissioner. Notification only specify "fatty acid". As such, for the purposes of finding out as to whether the PFAD is industrial fatty acid or not, the support from HSN has to be drawn. When HSN admittedly recognizes fatty acid distillate to be covered by Chapter 38, being fatty acid, there is no justifiable reason as to why the same should be excluded from the expression "industrial fatty acid" at the time of examining the applicability of the notification. The adjudicating authority has also observed that - "it is very clear that in general, raw material has to be saponified or hydrolysed to obtain industrial fatty acid. Mere refining is not enough. It is true that as a special case, the HSN goes to say that this heading also includes fatty acid distillate obtained from raw material which has been distillate. But this is a special and artificial explanation of the normal meaning of the term under HSN which is only meant for tariff classification purposes. The normal interpretation of the term industrial fatty acid is restricted only to a product obtained by splitting and by distillation. Therefore, for the purposes of notification No. 21/2002, I hold that the PFAD manufactured by M/s GAEL, cannot be considered as industrial fatty acid and the notice is not eligible to the benefit of the notification. According to the term normal trade parlance, technical opinion, the PFAD have to undergo the splitting process before it becomes an industrial fatty acid.
The above observations made by the adjudicating authority admit that in terms of HSN explanatory note, even fatty acid distillate would be considered as fatty acid. However, he makes his own observations to the effect that to include fatty acid distillate, in the above chapter of fatty acid is a special and artificial explanation of the normal meaning of the term under HSN and should be applied only for the purposes of classification. We find that the above observations of the adjudicating authority are contradictory. It cannot be said that PFAD would be industrial fatty acid for the purposes of classification but the same would not be industrial fatty acid for the purposes of notification benefit. To say so would be going outside the plain wording of the exemption notification, which does not make any such distinction in the fatty acid obtained by saponofication hydrolysis process or fatty acids obtained by distillation process.
We have already reproduced the notification. No process of manufacture is specified in the said notification. It is well settled principle of interpretation that the plain words of exemption notification have to be adhered to and the scope of the same cannot be narrowed down by introducing anything extraneous to the same. Hon'ble Supreme Court in the case of Gujarat State Fertilizers Co. 1997 (91) ELT 3 (SC), while dealing with the exemption notification No. 40/1985, extended the benefit of the same and observed that it is the express language of the notification which should be seen by the Court and the intention of the legislature is not relevant. The Court further observed that in absence of the restrictive words in the notification, the express and wide terminology "fertilizer" employed in the notification cannot be curtailed by any process of reasoning above supposed intention of the Central Govt. underlying issuance of the said notification. It was further observed by the Hon'ble Court as under:
12. ...It is also not possible to agree with the contention of Shri Bhat, learned Additional Solicitor General placing reliance on a decision of this Court in The Tata Oil Mills Co. Ltd. v. Collector of Central Excise that the supposed object and purpose of exemption should also be kept in view. In paragraph 6 of the Report, Ranganathan, J. speaking for a two-Member Bench of this Court has observed that in trying to understand the language used by an exemption notification, one should keep in mind two important aspects: (a) the object and purposes of the exemption and (b) the nature of the actual process involved in the manufacture of the commodity in relation to which exemption was granted. It must be kept in view that the object and purpose of the exemption has to be culled out from the express language of the notification. If the express language of the notification does not indicate a contrary intention conveyed by the wide words employed by the notification, full effect has to be given to the wide terminology employed by the notification otherwise the result would be that in trying to search for the supposed intention underlying the notification, the intention flowing from the express language of the notification would get stultified or truncated. To recapitulate, on the express language of the notification an inevitable conclusion follows that the Central Government meant to exempt excise duty on the captively consumed ammonia if it had resulted in the manufacture of fertilisers and as it had resulted in the manufacture of molten urea which by itself was a chemical fertiliser covered by Chapter 31 expressly mentioned in the said notification, the scope and ambit of the said notification could not be curtailed on the basis of the supposed latent intention underlying the said notification, namely, that only soil fertiliser was required to be produced by the captive consumption of ammonia and not any other type of fertiliser like molten urea which was a chemical fertiliser.
The court further observed in Para 13 that molten urea in that case was classified as chemical fertilizer under heading 31.02 by the authorities themselves for levying the excise duty on such commodity namely molten urea, if the department takes a view that it has to be subjected to excise duty as a chemical fertilizer, on its clearances even for captive consumption, it is difficult to appreciate the contradictory stand of the very same authority that it would not to be fertilizer for the purposes of exemption Notification No. 14/85. Such a stand cannot be permitted to be adopted by the department as it would amount to blowing hot and cold at the same time. If the molten urea is treated to be an excisable item under heading 31.02 as a chemical fertilizer, it has to be treated on the same lines while construing the sweep of exemption Notification No. 40/85. In short, Hon'ble Supreme Court's observations that molten urea must be considered to be a fertilizer for the purposes of its exigibility to duty under heading 31.02 of the tariff and simultaneously also for the purposes of exemption notification No. 40. In the instant case also, the appellants are selling PFAD by classifying the same under chapter 38, as fatty acid and are clearing the same on payment of duty under the said heading. The Revenue's stand that for the purposes of Central Excise duty, the PFAD is correctly classifiable under Chapter 38, but for the purposes of grant of exemption notification, the same would not be covered by the sub-heading, on the face of it and in the light of the law as discussed in the above referred decision, would be contradictory.
Similarly, Tribunal in the case of CCE Chennai v. Cheslind Textiles Ltd. 2007 (209) ELT 99 (Tri-Chennai) observed that it is trite law that the exemption notification should be strictly considered. Nothing can be added to the said notification nor anything can be deleted from it. No expression used in the notification can be varied or abridged so as to alter its meaning. Further, in case of CCE Pondichery v. Saravana Insulators Ltd. , it was that the meaning of an entry in the exemption notification is to be gathered from the plain language used therein.
In the case of Steel Authority of India Ltd. v. Collector of Customs and Excise, Bolpur (W.B.) , it was held that the meaning of the word given in the exemption notification is to be gathered from the relevant tariff description and inclusive definition given in the relevant tariff item.
Similarly, in the case of CCE Hyderabad v. Sunder Steels Ltd. as , the Hon'ble Supreme Court observes that exemption notification are not to be interpreted by adding words to that notification. It was further observed that the appellants submission can not be accepted as the same would amount to reading the notification words (involved in that case) to the effect that 100% of the manufacture of ingots must be from product manufactured or produced within the same premises. No such words appears in that notification. If the intention was to restrict benefit to only those plants in which the entire production from iron ore stage to ingots, was to be in the same premises, the notification would have so specified. In the present case also, we find that the Revenue is seeking to introduce the method of production in the notification whereas there is no such method specified therein.
Our views get support from the subsequent amendment to the said notification by Notification No. 11/05-Cusm dt.1.3.06 By the said amendment, entry 30 was trifurcated into Sr.Nos. A, B 85 C. Sr.No. A excludes crude palm oil from the benefit of the notification. However, it is seen that the benefit stands extended to all goods other than edible grade having free fatty acid 20% or more and falling under specified heading in the manufacture of inter alia, industrial fatty acid by a manufacturer having plant for splitting of such oils into fatty acid and gyycerol. As such, it is seen that even in respect of other oils, the process of manufacture stands specifically specified. When such amended entry is compared to be un-amended entry, it becomes clear that no such process of manufacture was specified in the earlier entry and same cannot be introduced by the Revenue. Amendment was specifically effective from dt.1.3.06 and cannot be read into earlier notification.
The present problem, when viewed in the light of the above judgment, brings us to an inevitable conclusion that in the light of HSN explanatory note and the admitted fact, PFAD has to be held as industrial fatty acid.
Accordingly, we answer first issue in favour of the appellant.
11. This brings us to the second issue. The Commissioner has observed emergence of PFAD even if they are considered as industrial fatty acid, to the extent of only 25%, would make the appellant ineligible to the benefit of the notification. When we read the notification, we find that the same lays down that imported crude palm oil must be used for industrial fatty acid. It does not mean that yield of industrial fatty acid should be to the extent of 100%. Admittedly, the said crude palm oil has been used for the manufacture of industrial fatty acid. The Revenue's objection that such industrial fatty acid is only to the extent of 25% and as such the appellants would not be entitled to the benefit of the notification is not in accordance with the plain language implied in the notification. It is nowhere suggested in the notification about the percentage yield of industrial fatty acid. As we have already observed in the preceding paragraph that a notification has to be seen and interpreted on the basis of clear plain language used and no extra materials can be read into the same. In as much as no percentage yield stands mentioned in the notification, the Revenue's objection can not be sustained.
It has been argued before us by the learned JCDR that crude palm oil (industrial grade) cannot be used for manufacture of refined vegetable oil / vegetable under the Foods Prevention & Adulteration Act and in as much as the appellant has also produced refined vegetable oil from the crude palm oil, they should be held guilty of contravention of the notification. We observe that the above issue as to whether refined oil so obtained by the appellant is in contravention of the provisions of Foods Prevention & Adulteration Act or not, is not one of the issues before us and we are also not the proper authority to deal with the same. It has also been brought to our notice by the learned advocate Shri Nankani that there is no objection by the authority under the Prevention of Food Adulteration Act to the manufacturer of above refined vegetable oil and consequent sale of the same in the market. In fact on the contrary, he submits that all the records mentioned by them are scrutinized by PFA authority and no action has been taken by them on the said ground. Without going into the above fact, we find that we cannot deal with any issue which falls under the jurisdiction of PFA authorities. Whether that is permitted or not permitted, is an issue which requires the attention of PFA authorities and the benefit of notification cannot be made dependent upon the same.
12. In view of the foregoing discussion, we hold that the benefit of the notification was rightly availed by the appellant and no demand of duty can be confirmed against them. Resultantly, the confirmation of interest and imposition of penalty is also not sustainable.
13. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellant.
14. In as much as the appeal has been allowed on merit, we are not going into the appellant's plea of the demand being barred by limitation.
(Pronounced in Court on 12/10/07)