Emami Agrotech Ltd vs Commissioner-Kolkata(Port) on 22 September, 2023

[Cites 32, Cited by 0]

Custom, Excise & Service Tax Tribunal

Emami Agrotech Ltd vs Commissioner-Kolkata(Port) on 22 September, 2023

    IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
                 TRIBUNAL, KOLKATA

                    REGIONAL BENCH - COURT NO.2

                      Customs Appeal No. 76086 of 2021

(Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/354-370/2021   dated
13/04/2021 passed by Commissioner of Customs (Appeals), Kolkata)


M/s. Emami Agrotech Ltd
(JL-149, HPL Link Road, Debhog, Bhabanipur, Haldia,
Purba, Medinipur, W.B.)
                                                            Appellant
                                  VERSUS
Commr. of Customs (Port), Kolkata
(15/1, Strand Road, Kolkata-700001)
                                                            Respondent

With

(x) Customs Appeal No. 76096 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xi) Customs Appeal No. 76097 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xii) Customs Appeal No. 76098 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xiii) Customs Appeal No. 76099 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xiv) Customs Appeal No. 76100 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xv) Customs Appeal No. 76101 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xvi) Customs Appeal No. 76102 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xvii) Customs Appeal No. 76103 of 2021 (M/s.

Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xviii) Customs Appeal No. 76104 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xix) Customs Appeal No. 76105 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xx) Customs Appeal No. 76106 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxi) Customs Appeal No. 76107 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxii) Customs Appeal No. 76108 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxiii) Customs Appeal No. 76109 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxiv) Customs Appeal No. 76110 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxv) Customs Appeal No. 76111 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxvi) Customs Appeal No. 76112 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxvii) Customs Appeal No. 76113 of 2021 ( M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxviii) Customs Appeal No. 76114 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxix) Customs Appeal No. 76115 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxx) Customs Appeal No. 76116 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxi) Customs Appeal No. 76117 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxii) Customs Appeal No. 76118 of 2021 ( M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxiii) Customs Appeal No. 76119 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxiv) Customs Appeal No. 76120 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxv) Customs Appeal No. 76121 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxvi) Customs Appeal No. 76122 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxvii) Customs Appeal No. 76123 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxviii) Customs Appeal No. 76124 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxix) Customs Appeal No. 76125 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxx) Customs Appeal No. 76126 of 2021 (M/s. Emami Agrotech Ltd 3 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Vs. Commr. of Customs (Port), Kolkata (xxxxi) Customs Appeal No. 76127 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxii) Customs Appeal No. 76128 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxiii) Customs Appeal No. 76129 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxiv) Customs Appeal No. 75097 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxv) Customs Appeal No. 75098 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxvi) Customs Appeal No. 75099 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxvii) Customs Appeal No. 75100 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxviii) Customs Appeal No. 75101 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxix) Customs Appeal No. 75102 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxx) Customs Appeal No. 75103 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxi) Customs Appeal No. 75104 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxii) Customs Appeal No. 75105 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxiii) Customs Appeal No. 75106 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxiv) Customs Appeal No. 75107 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxv) Customs Appeal No. 75108 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxvi) Customs Appeal No. 75109 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxvii) Customs Appeal No. 75110 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxviii) Customs Appeal No. 75111 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxix) Customs Appeal No. 75112 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxx) Customs Appeal No. 75113 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxi) Customs Appeal No. Customs Appeal No. 75114 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxxxxii) Customs Appeal No. 75115 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata 4 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 (xxxxxxiii) Customs Appeal No. 75116 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxiv) Customs Appeal No. 75560 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxv) Customs Appeal No. 75561 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxvi) Customs Appeal No. 75562 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxvii) Customs Appeal No. 75563 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxxxxviii) Customs Appeal No. 75564 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxix) Customs Appeal No. 75565 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxx) Customs Appeal No. 75566 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxi) Customs Appeal No. 75567 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxii) Customs Appeal No. 75568 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxiii) Customs Appeal No. 75569 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxiiv) Customs Appeal No. 75570 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxv) Customs Appeal No. 75571 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxvi) Customs Appeal No. 75572 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxvii) Customs Appeal No. 75573 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxviii) Customs Appeal No. 75574 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxix) Customs Appeal No. 75575 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxx) Customs Appeal No. 75576 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxi) Customs Appeal No. 75577 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxii) Customs Appeal No. 75578 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxiii) Customs Appeal No. 75579 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxiiv) Customs Appeal No. 75580 of 2021 (M/s. Emami 5 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxv) Customs Appeal No. 75581 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxvi) Customs Appeal No. 75582 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxvii) Customs Appeal No. 75583 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxviii) Customs Appeal No. 75584 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxix) Customs Appeal No. 75585 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxx) Customs Appeal No. 75586 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxxi) Customs Appeal No. 75587 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxxii) Customs Appeal No. 75588 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxxxxxxxxiii) Customs Appeal No. 75589 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata SI No. i to xvi (KOL/CUS(Port)/AKR/354-370/2021 dated 13/04/2021 passed by Commissioner of Customs (Appeals), Kolkata) SI No. xvii to xxxxiii (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/371- 397/2021 dated 13/04/2021 passed by Commissioner of Customs (Appeals), Kolkata) SI No. xxxxiv to xxxxxxiii (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/820-839/2020 dated 05/11/2020 passed by Commissioner of Customs (Appeals), Kolkata) SI No. xxxxxxiv-xxxxxxxxxiii (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/162-191/2021 dated 22/02/2021 passed by Commissioner of Customs (Appeals), Kolkata) APPEARANCE :

Mr. Arvind Baheti, CA for the Appellant Mr. S. Debnath, Authorized Representative for the Respondent CORAM:

HON'BLE MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL) Date of Hearing : 11 September 2023 Date of Pronouncement :22/9/2023 6 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Customs Appeal No. 75070 of 2021 (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/768-788/2020 dated 04/11/2020 passed by Commissioner of Customs (Appeals), Kolkata) M/s. Emami Agrotech Ltd (JL-149, HPL Link Road, Debhog, Bhabanipur, Haldia, Purba, Medinipur, W.B.) Appellant VERSUS Commr. of Customs (Port), Kolkata (15/1, Strand Road, Kolkata-700001) Respondent With

(i) Customs Appeal No. 75071 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (ii) Customs Appeal No. 75072 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (iii) Customs Appeal No. 75073 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata(iv) Customs Appeal No. 75074 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (v) Customs Appeal No. 75075 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (vi) Customs Appeal No. 75076 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (vii) Customs Appeal No. 75077 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (viii) Customs Appeal No. 75078 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (ix) Customs Appeal No. 75079 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata

(x) Customs Appeal No. 75080 of 2021 (M/s. Emami Agrotech 7 Customs Appeal Nos. 76086-76102, 76103-76129, 75097-

75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Ltd Vs. Commr. of Customs (Port), Kolkata (xi) Customs Appeal No. 75081 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xii) Customs Appeal No. 75082 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xiii) Customs Appeal No. 75083 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xiv) Customs Appeal No. 75084 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xv) Customs Appeal No. 75085 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xvi) Customs Appeal No. 75086 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xvii) Customs Appeal No. 75087 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xviii) Customs Appeal No. 75088 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xix) Customs Appeal No. 75089 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xx) Customs Appeal No. 75090 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata (xxi) Customs Appeal No. 75263 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxii) Customs Appeal No. 75264 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxiii) Customs Appeal No. 75265 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxiv) Customs Appeal No. 75266 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxv) Customs Appeal No. 75267 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxvi) Customs Appeal No. 75268 of 8 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxvii) Customs Appeal No. 75269 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxviii) Customs Appeal No. 75270 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxix) Customs Appeal No. 75271 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxx) Customs Appeal No. 75272 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxi) Customs Appeal No. 75273 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxii) Customs Appeal No. 75274 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxiii) Customs Appeal No. 75275 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxiv) Customs Appeal No. 75276 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxv) Customs Appeal No. 75277 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxvi) Customs Appeal No. 75278 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxvii) Customs Appeal No. 75279 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxviii) Customs Appeal No. 75280 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxix) Customs Appeal No. 75281 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) (xxxx) Customs Appeal No. 75282 of 2021 (M/s. Emami Agrotech Ltd Vs. Commr. of Customs (Port), Kolkata) 9 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 SI No. i to xx (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/768- 788/2020 dated 04/11/2020 passed by Commissioner of Customs (Appeals), Kolkata) SI No. xxi to xxxx (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/878- 897/2020 dated 09/12/2020 passed by Commissioner of Customs (Appeals), Kolkata) APPEARANCE :

Mr. Arvind Baheti, CA for the Appellant Mr. S. Debnath, Authorized Representative for the Respondent CORAM:

HON'BLE MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL) Date of Hearing : 12 September 2023 Date of Pronouncement : 22/9/2023 Customs Appeal No. 75045 of 2021 (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/743-767/2020 dated 04/11/2020 passed by Commissioner of Customs (Appeals), Kolkata) M/s. Emami Agrotech Ltd (JL-149, HPL Link Road, Debhog, Bhabanipur, Haldia, Purba, Medinipur, West Bengal-721657) Appellant VERSUS Commr. of Customs (Port), Kolkata (15/1, Strand Road, Kolkata-700001) Respondent With

(i) Customs Appeal No. 75046 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (ii) Customs Appeal No. 75047 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (iii) Customs Appeal No. 75048 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (iv) Customs Appeal No. 75049 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (v) Customs Appeal No. 75050 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (vi) Customs Appeal No. 75051 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (vii) Customs Appeal No. 75052 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (viii) Customs Appeal No. 75053 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (ix) Customs Appeal No. 75054 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (x) Customs Appeal No. 10 Customs Appeal Nos. 76086-76102, 76103-76129, 75097-

75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 75055 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xi) Customs Appeal No. 75056 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xii) Customs Appeal No. 75057 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xiii) Customs Appeal No. 75058 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xiv) Customs Appeal No. 75059 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xv) Customs Appeal No. 75060 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xvi) Customs Appeal No. 75061 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xvii) Customs Appeal No. 75062 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xviii) Customs Appeal No. 75063 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xix) Customs Appeal No. 75064 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xx) Customs Appeal No. 75065 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xxi) Customs Appeal No. 75066 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xxii) Customs Appeal No. 75067 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xxiii) Customs Appeal No. 75068 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata (xxiv) Customs Appeal No. 75069 of 2021 (Emami Agrotech Ltd Vs Commr. of Customs (Port), Kolkata SI No. (i) To (xxiv) (Arising out of Order-in-Appeal Nos. KOL/CUS(Port)/AKR/743- 767/2020 dated 04/11/2020 passed by Commissioner of Customs (Appeals), Kolkata) APPEARANCE :

Mr. Arvind Baheti, CA for the Appellant Mr. S. Debnath, Authorized Representative for the Respondent CORAM:

HON'BLE MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL) FINAL ORDER NO.76944-77103/2023 Date of Hearing : 13 September 2023 Date of Pronoucement : 22/9/2023 11 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 PER P. K. CHOUDHARY This batch of 160 appeals comprised in Customs Appeal Nos. C/75045/2021-C/75069/2021, C/75070/2021-C/75090/2021, C/75097/2021-C/75116/2021¸C/75263/2021-C/75282/2021, C/75560/2021-C/75589/2021, C/76086/2021-C/76102/2021, C/76103/2021-C/76129/2021, have been filed against 7 Orders-in-Appeal passed by the Commissioner of Customs (Appeal), Kolkata bearing Nos. 743-767/2020 dated 04.11.2020, 768-788/2020 dated 04.11.2020, 820- 839/2020 dated 05.11.2020, 878-897/2020 dated 09.12.2020, 162- 191/2021 dated 22.02.2021, 354-370/2021 & 371-397/2021 both dated 13.04.2021 (hereinafter referred to as the "impugned orders") respectively. Since the issue involved is common and the impugned orders read identical, all these appeals are decided by a common order.

2. Briefly stated, the facts of the case are that the Appellant is engaged in the business of refining and selling edible oils. For the said purpose, the Appellant imports Crude Edible Oil from various countries and carries out refining thereof at its manufacturing facility located at Haldia (West Bengal). During the period April 2020 to September 2020, the Appellant had filed 160 Bills of Entry (hereinafter "impugned BOEs) on the EDI Portal for the import of 160 consignments of crude palm oil by availing benefit of Exemption Notification Nos. 24/2015 - Cus. and 25/2025 - Cus. both dated 08.04.2015 issued under MEIS/SEIS Scheme, which are export promotion schemes. While Basic Customs Duty („BCD‟) stood specifically exempted under these notifications, the Appellant was constrained to pay the Social Welfare Surcharge (SWS) computed @10% on the notional BCD in cash, for causing clearance of these consignments. The Appellant was of the view that since BCD was not collected pursuant to the exemption (supra), no liability for SWS could have been determined with reference to the notional BCD. Consequently, the Appellant challenged the assessment of SWS in each 12 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 of these BOEs by filing as many appeals before the Ld. Appellate Commissioner. All these appeals were rejected by the Ld. Appellate Commissioner vide the impugned orders, which are the subject matter of challenge in these proceedings.

3. The learned Consultant appearing for the Appellant has assailed the impugned Orders on the following grounds:

(a) In terms of Section 110(3) of the Finance Act, 2018, SWS is required to be computed at the rate of 10% on the aggregate of duties "levied and collected" under Section 12 of the Customs Act, 1962. Further, in terms of the judgement of the Hon‟ble Supreme Court in the case of Somaiya Organics Limited Vs. State of Uttar Pradesh [2001 (130) E.L.T. 3] "collection" in the context of tax laws means "physical realization of tax". Since, no BCD is collected in view of the exemption conferred under Notification Nos. 24/2015 - Cus.

and 25/2025 - Cus. both dated 08.04.2015, the SWS computed at the rate of 10% on "zero" should also be "zero". The CBIC in its later Circular No. 03/2022 - dated 01.02.2022 has also clarified the said position at Para 4 set out hereunder:

"4. Thus, it is clarified that the amount of Social Welfare Surcharge payable would be „Nil‟ in cases where the aggregate of customs duties (which form the base for computation of SWS) is zero even though SWS has not been exempted."

It is further stated that the aforesaid Circular, being a beneficial one shall be retrospectively applicable to the facts of the current case in terms of the judgement of the Hon‟ble Supreme Court in the case of Suchitra Components Vs. Commissioner of Central Excise, Guntur [2007 (208) E.L.T. 321].

Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021

(b) The same very issue as is involved in the present proceedings stands decided by the Hon‟ble Division Bench of the Bombay High Court in the Appellant‟s own case vide order dated 27.09.2022 passed in Writ Petition bearing No. 1447 of 2021. Pursuant to the said order, refund of SWS amount has also been sanctioned to the Appellant vide refund sanction order dated 13.04.2022. The said legal position has been re- iterated by the Bombay High Court in the case of La Tim Metal & Industries Limited Vs. The Union of India reported in 2022 (11) TMI 1099.

(c) Education Cess (EC) and Secondary and Higher Education Cess (SHEC), introduced vide the Finance (No. 2) Act, 2004 and Finance Act, 2007 respectively, are also in the nature of surcharges, akin to SWS and are calculated at a certain percentage of the aggregate of duties of Customs "levied and collected" under Section 12 of the Customs Act, 1962. Apropos the said surcharges, the Board vide its Circular No. 345/2/2004

- TRU dated 10.08.2004 had clarified in response to Issue No. 2 that duties which are both "levied and collected" shall be taken into account for the purpose of calculation of the surcharges and as such when the duties/cesses are themselves not collected owing to an exemption or clearance under a specified procedure, there would be no leviability of EC. Further, in the context of goods imported against exemption Notifications operationalizing DEPB and Target Plus Scheme, dealing with a similar question of leviability of EC and SHEC, a consistent view has been taken by various High Courts and Tribunal that there would be no liability for EC and/or SHEC despite the Circular No. 5/2005 - Cus dt. 31.01.2005. Reliance in this regard is placed upon the following decisions:

Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021

1. Gujarat Ambuja Exports Vs. Government of India [2013 (289) E.L.T. 273 (Guj.)]

2. Commissioner of Central Excise, Vishakhapatnam Vs. Kedia Overseas Limited [2014 (305) E.L.T. 268 (AP)] Maintained SC [2015 (326) E.L.T. A134]

3. Commissioner of Central Excise, Tuticorin Vs. DCW Limited [2014 (306) E.L.T. 398 (Mad.)]

4. Commissioner of Customs (Export) Vs. Reliance Industries Limited [2015 (322) E.L.T. 121 (Bom.)]

5. Commissioner of Customs, Kandla Vs. Bhushan Steel & Strips Limited [2010 (259) E.L.T. 155].

(d) The decision of the Hon‟ble Supreme Court in the case of Unicorn Industries, reported in 2019 (370) ELT 3 (S.C.) has no application to the facts of the present case. In the said case the Hon‟ble Supreme Court was dealing with an exemption notification no. 71/2003 - CE dated 09.09.2003, granting certain duty concessions to the units located in the North- eastern states. Under the said notification, the assessee was entitled to refund of specified duties paid on value addition and the question before the Hon‟ble Court was whether EC and SHEC shall also come within the scope of exemption although not specified therein. Since refund of the specified duties was only possible post collection, the question of leviability of EC and SHEC was not gone into by the Hon‟ble Supreme Court in the said decision. The appellant on the other hand in these proceedings is questioning the liability/computation of SWS with reference to notional BCD under Section 110(3) of the Finance Act, 2018 when BCD is specifically exempted under Notification No.. 24/2015 - Cus. and 25/2025 - Cus. both 15 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 dated 08.04.2015. Therefore, the ratio of the decision of the Hon‟ble Supreme Court in Unicorn Case (supra) is clearly not applicable in view of the principle laid down by the Hon‟ble Supreme Court in the case of IndusInd Media and Communications Limited Vs. CC, New Delhi [(2019) 17 SCC 108] as also in light of the judgement of the Hon‟ble Supreme Court in the case of CCE Vs. Srikumar Agencies [2008 (232) E.L.T 577].

(e) The findings and observations of the Ld. Appellate Commissioner are unsustainable and inconsistent and the counter contentions of the Appellant against each of the findings/observations made by the Ld. Appellate Commissioner has been tabulated hereunder:

Sl. Relevant Observation/Finding of Contentions of the Appellant No Para the Ld. Appellate Commissioner

1. 16,18,20 Although, it has been a) Notification No. 24 and 25 are ,25,26 observed by the Ld. issued by exercising the Appellate Commissioner powers conferred under that the DEPB is akin to Section 25 of the Customs MEIS/SEIS and Act, 1962 which confers the provisions with respect Government to grant to EC and SHEC are on exemption absolutely or the same footing as that subject to conditions as may of SWS, yet, by relying be specified. The upon the conditions provisions/conditions stipulated under contained in the said Notification No. 96/2004 notifications are unambiguous 16 Customs Appeal Nos. 76086-76102, 76103-76129, 75097-

75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 dated 17.09.2004 and as such the same deserves a the provisions of the strict literal interpretation in FTP, it has been held by terms of the judgement of the Ld. Appellate the Hon‟ble Supreme Court in Commissioner that there the case CC (Import), is no factual exemption Mumbai Vs. Dilip Kumar from the payment of and Company [(2018) 9 BCD. SCC 1].

Further, Customs exemption notification should be construed on its own terms without any intendment of the provisions of FTP.

Reliance in this regard is being placed on the judgement of the Hon‟ble Supreme Court in the case of CC Hyderabad Vs. Pennar Industries Limited [2015 (322) E.L.T. 402].

b) The Hon‟ble Supreme Court in the case of Somaiya Organics Limited Vs. State of Uttar Pradesh reported 2001 (130) E.L.T. 3 has held in no uncertain terms that the expression "collection" in the context of tax laws would 17 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 mean "physical realization of tax". On the other hand, the Ld. Appellate Commissioner in the impugned order has himself accepted at Para 28 that in effect no money representing the duty goes to the government exchequer under Notification 24 and 25 which essentially would imply that no BCD is physically collected and the debit to the scrips is only a matter of procedure not vitiating the factum of exemption from BCD as held in the case Gujarat Ambuja Exports Limited (supra).

c) There was no change in the legal position as regards non leviability of EC in case of goods imported against DEPB scrips despite the introduction of Notification No. 96/2004 -

Cus. dated 17.09.2004 as also the Circular dated 31.01.2005 as is evident from the judgement of the Hon‟ble Madras High Court in the case 18 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 of DCW Limited (supra).

Further, the conditions as regards entitlement of drawback and CENVAT Credit of duties debited to the scrips had also fallen for consideration before the Hon‟ble Tribunal in the case of Bhushan Steel & Strips Limited (supra) in the context of goods imported against Target Plus Scrips and the Hon‟ble Tribunal held that the said conditions did not alter the factum of BCD having been exempted under the said Notification No. 32/2005 dated 08.04.2005. Therefore, there is no basis for the Ld. Appellate Commissioner to hold the view that BCD in fact was not exempted.

d) In any event, eligibility to drawback is contingent upon the inputs imported against the scrips only when used for manufacturing export goods.

In so far as the CENVAT credit of additional duties is 19 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 concerned, since the goods imported are not subject to additional duties but IGST (which is not exempted) this condition is not applicable in the instant case and cannot be used against the Appellant.

2. 19,21,22 The Ld. Appellate a) Circular no. 05/2005 - Cus.

Commissioner placed its dated 31.01.2005 has been reliance upon Circular held to be contrary to the No. 05/2005 - Cus. provisions of the law and was dated 31.01.2005 to set aside vide the judgement hold that education cess in the case of Gujarat Ambuja at the rate of 2% can be Exports Limited (supra).

                debited from the scrips              Therefore, the observation of
                under the DEPB scheme                the            Ld.              Appellate
                and      the        same        is   Commissioner in so far as it
                applicable to the facts of           seeks     to        apply       the      said
                the instant case as the              circular to the facts of the
                said    Circular     has    not      present case is unsustainable
                been rescinded till date.            and arbitrary.


                The        Ld.       Appellate b) Further, the said observation
                Authority has held that              runs contrary to the ratio as
                debit of the duty credit             laid   down         in    the    case      of
                scrips by treating it as             Unicorn        Industries          (supra)
                an     additional    duty       of   whereby        it    was        held     that
                Customs is well justified.           when    only        specified          duties
                                                     are     exempted                vide      an
                                     20

4. The learned DR supports the impugned orders and makes the following further submissions:

(a) Circular No. 2/2020-Cus dated 10.01.2020 specifically provides for levy and collection of SWS in case of goods imported against MEIS/SEIS scrips and being specific should prevail over Circular No. 03/2022-Cus dated 01.02.2022

(b) BCD is not generally exempted under Notification No. 24/2015-Cus(Tariff) dt. 8.04.2015 but paid by debit to the MEIS/SEIS Scrips

(c) The decision of the Hon‟ble Madras High Court in Writ Petition No. 24490 and 27459 of 2019 filed by Gemini Edibles and Fats India Pvt. Ltd fully supports the contention of the revenue

(d) The decision of the Hon‟ble Bombay High Court in LA TIM Metals cannot prevail over the judgement of the Supreme Court in the Unicorn Industries case (supra)

5. Heard both sides and perused the appeal records.

6. We find that a pure question of law arises for our consideration in these appeals not involving any factual controversy. The issue involved in these appeals relates to the levy and collection of SWS under Section 110(3) of the Finance Act, 2018 set out hereunder to the extent relevant for the instant appeals:

(3) The Social Welfare Surcharge levied under sub-section (1), shall be calculated at the rate of ten percent on the aggregate of duties, taxes and cesses which are levied and collected by the Central Government in the Ministry of 21 Customs Appeal Nos. 76086-76102, 76103-76129, 75097-

75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Finance (Department of Revenue) under Section 12 of the Customs Act, 1962 and any sum chargeable on the goods specified in sub-section (1) under any other law for the time being in force, as an addition to and in the same manner as, a duty of customs, but not including

(a).....

(b)....

(c)...

(d)...

Therefore, SWS is required to be quantified @ 10% with reference to specified duties of customs, which are not only levied but also collected by the Ministry of Finance. In the facts of the present case, it is not in dispute that the Appellant had imported goods by availing the benefit of Notification No. 24/2015 and Notification No. 25/2015 („the said notifications‟) and fulfilled the conditions thereunder. It is the case of the Appellant that under the said notifications issued in exercise of the powers to grant exemption under Section 25 of the Customs Act, 1962, BCD stands exempted albeit subject to the condition interalia of a debit to the MEIS/SEIS scrip (as the case may be) of the BCD leviable on the goods but for the exemption. Since there is no actual collection of BCD in view of the exemption, the Appellant argues that no SWS can be levied and collected with reference to notional BCD under Section 110(3) of the Finance Act, 2018 extracted (supra). The contention of the revenue, on the other hand, is that debit of BCD to the scrip under the said notifications is an alternate mode of payment and not an exemption perse so as to justify the computation of SWS. However, we find that BCD amount is conspicuously reflected as 22 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 "zero" in the BOEs filed availing the said notifications, which is not in consonance with the contention of the revenue that BCD is collected in case of goods imported under the said notifications. The Hon‟ble Supreme Court in the Somaiya Organics Case (supra) has held in no un-certain terms that the expression "collection" in the context of tax laws would mean "physical realization of tax" where as in the instant case, the Appellate Commissioner has himself accepted at para 28 of the impugned orders that no money representing BCD goes to the exchequer under the said notifications meaning thereby that the test of "physical realization of tax" is clearly not met and the debit of BCD to the scrip is at best a notional collection of tax when the said notifications are read in entirety. Moreover, a similar condition of debit to the duty credit scrips as prevalent in the notifications operationalizing the DEPB scheme and the Target Plus Scheme had fallen for consideration of various High Courts and Tribunal in the following cases in the context of levy and collection of EC imposed by the Finance (No. 2) Act, 2004:

(i) Gujarat Ambuja Exports Vs. Government of India [2013 (289) E.L.T. 273 (Guj.)]

(ii) Commissioner of Central Excise, Vishakhapatnam Vs. Kedia Overseas Limited [2014 (305) E.L.T. 268 (AP)] Maintained SC [2015 (326) E.L.T. A134]

(iii) Commissioner of Central Excise, Tuticorin Vs. DCW Limited [2014 (306) E.L.T. 398 (Mad.)]

(iv) Commissioner of Customs (Export) Vs. Reliance Industries Limited [2015 (322) E.L.T. 121 (Bom.)]

(v) Commissioner of Customs, Kandla Vs. Bhushan Steel & Strips Limited [2010 (259) E.L.T. 155].

Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 The Hon‟ble Gujarat High Court in the Gujarat Ambuja Case (supra) held that the condition of debit of the exempted duties to the Scrips is merely procedural as the Scrip has value and would not change the nature of benefit from one being of exemption having been issued in exercise of powers conferred under Section 25 of the Customs Act. Relevant para of the said decision is extracted below:

19......................In essence, therefore for imports made under the DEPB Scheme, of course, subject to the conditions specified in the exemption notification, the customs duty was exempt. Merely because the conditions provided for adjustment of credit in the DEPB Scrips, it cannot be stated that either there was no exemption from payment of customs duty or that the central government was levying and collection customs duty from the importers in the form of adjustment of credit in the DEPB Scrips. We may recall that such credits are given at specified rates on the basis of SION norms primarily taking into account deemed import content of the export product and the basic customs duty payable on such deemed imports. Thus through such adjustment on the DEPB Scrips at the time of further imports, customs duty component is sought to be neutralized. The view expressed by the Tribunal in the case of "Reliance Industries Ltd (supra) appeals to us. In the said decision, Tribunal taking note of the provisions contained in Section 81 and Section 84 of the Finance Act 2004 held that the impugned Circular No. 5/2005 is legally not sustainable.

The Tribunal held that crediting and debiting of entries in the passbook is a matter of procedure and convenience and 24 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 in essence the Notification No. 45/2002 provides for full exemption from payment of customs duty"

The above view of the Gujarat High Court was followed in S.No.

(iii) to (v) above. The Hon‟ble Madras High Court in S.No.(iii) above was concerned with the subsequent notification no.

96/2004 - Cus dated 17.09.2004 operationalizing the DEPB Scheme and the Tribunal in S.No. (v) was concerned with the notification no. 32/2005-Cus operationalizing the Target Plus Scheme. The conditions of debit of BCD to the scrip and the availment of drawback with respect to the subsequent exports out of the imported inputs were also prevalent in notification no. 96/2004 - Cus dt. 17.09.2004 and notification no. 32/2005-Cus. The learned Appellate Commissioner has himself accepted at para 16 & 17 of the impugned Orders that the DEPB Scheme is similar to the MEIS/SEIS Scheme and that the levy of SWS has replaced EC but erroneously relies upon Circular No. 5/2005-Cus dt. 31.01.2005, which has been held invalid and contrary to Section 81 and Section 84 of the Finance Act, 2004 and quashed by the High Court in the Gujarat Ambuja Exports Case (supra). At this stage, it would also be pertinent to refer to the provisions of Section 94 of the Finance (No. 2) Act, 2004, which reads as under:

(1) The Education Cess levied under Section 91, in the case of goods specified in the First Schedule to the Customs Tariff Act, 1975 being goods imported into India, shall be a duty of customs (in this section referred to as the Education Cess on imported goods) at the rate of two percent calculated on the aggregate of duties of customs which are levied and collected by the Central Government in the Ministry of Finance (Department of Revenue) under Section 12 of the 25 Customs Appeal Nos. 76086-76102, 76103-76129, 75097-

75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 Customs Act, 1962 and any sum chargeable on such goods under any other law for the time being in force, as an addition to and in the same manner as a duty of customs but not including,

(a)......

(b)........

7. Since both EC and SWS are in the nature of surcharge and the provisions pertaining to their quantification as contained in Section 94(1) of the Finance (No. 2) Act, 2004 and Section 110(3) of the Finance Act, 2018 as extracted above are pari materia, the jurisprudence as regards non applicability/non levy of Education Cess in respect of goods imported against the DEPB and/or Target Plus Scheme should equally apply in the context of SWS in respect of goods imported against the MEIS/SEIS Schemes.

8. Even otherwise, the self same issue of non leviability of SWS in case of goods imported under the said notifications with which we are concerned in these proceedings had fallen for consideration before the Hon‟ble Division Bench of the Bombay High Court in the Appellant‟s own case in Writ Petition bearing No. 1447 of 2021. The Hon‟ble Court after considering the Circular dated 01.02.2022, decided the issue in favour of the Appellant vide its order dated 27.09.2022. No stay has been brought to our notice against the said order of the Hon‟ble Bombay High Court. On the contrary, pursuant to the said order, refund of SWS amount has also been sanctioned to the Appellant vide refund sanction order dated 13.04.2022. The grievance of the revenue before us is that an earlier Circular dated 10.01.2020, which was specific to the issue at hand and which has not been rescinded was not considered. We find that both the Circulars deal with levy and collection of SWS, while the earlier one is oppressive and provides for payment of SWS in case of imports against the MEIS/SEIS Scrip the later Circular contemplates that the amount of SWS payable would be "NIL" where the BCD which 26 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 forms the basis for computation of SWS is "Zero" even though SWS has not been exempted. The later Circular does not contemplate that its operation is limited to situations not covered by the earlier circular. It is settled by the Hon‟ble Supreme Court in the case of Suchitra Components Ltd reported in 2007 (208) ELT 321 that a beneficial circular is to be applied retrospectively. Moreover, both the Circulars were considered by the Hon‟ble Bombay High Court in the La Tim Metal Case (supra) in its order dated 15.11.2022 passed in WP No. 12183/2022 at para 6 thereof while holding that when the BCD is "nil", SWS, being computed at the rate of 10% of BCD, shall also be "nil". Further, as already observed above Circular No. 5/2005 dt. 31.01.2005 which provided for levy and collection of Education Cess in case of goods imported under the notifications operationalizing the DEPB Scheme was held to be not in consonance with provisions of Section 94 of the Finance (No. 2) Act, 2004. Therefore, the circular dated 10.1.2020 which takes the same view for SWS as was canvassed in Circular dt. 31.01.2005 for Education Cess cannot be given primacy over the later circular dt. 01.02.2022.

9. We also find that the Hon‟ble Supreme Court in the Unicorn Case (supra) was concerned with the interpretation of an exemption notification no. 71/2003-CE dt. 9.9.2003 granting area based exemption to units located in the north east. Under Notification No. 71/2003-CE, units in the north east were entitled to refund of specified duties paid on value addition and the question before the Hon‟ble Court was whether EC, SHEC, NCCD imposed by the Finance Act 2001, 2004 and 2007 which were not specifically exempted under Notification No. 71/2003 shall also come within the scope of the said exemption for the purposes of refund. Para 2 and 22 of the said decision are set out hereunder for ease of reference:

Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 2 The question involved in the appeals is with respect to the levy of education cess, higher education cess and National Calamity Contingency Duty on it. The appeals arise out of common judgement. The High Court has held that duties in question are not part of the exemption notification. The writ petitions have been dismissed. Hence, the appeals have been preferred

22.The main question arising for consideration is when 100 percent exemption had been granted for excise duty for a period of 10 years, whether the exemption notification issued for the state of Sikkim on 9-9-2003 shall be confined to the basic excise duty under the Act of 1944, additional duty under the Act of 1957 and additional duty under the Act of 1978, which were specifically mentioned in the notification issued on 9-9-2003 or it also includes cess/duty imposed by Finance Acts of 2001, 2004 and 2007

10. The Hon‟ble Supreme Court denied refund of the un-specified duties under Notification No. 71/2003-CE as would be evident from para 40 of the said order as the exemption was categorical in its scope. Further, since refund of specified duties under Notification No. 71/2003- CE was only possible post collection, the question of non leviability of Education Cess under Section 94 of the Finance (No. 2) Act 2004 for want of collection of the underlying duty was not germane to the issue before the Hon‟ble Supreme Court and was therefore not gone into. A judgement is an authority for what it decides and not what can be inferred from it as held by the Hon‟ble Supreme Court itself in Indusind Media Case (supra).The Hon‟ble Supreme Court in the Srikumar Agencies Case (supra) has also held that the decisions of the Court are not Euclid‟s theorem and cannot be read out of context as one fact or circumstantial flexibility can make a whole lot of difference to the outcome of the case. Therefore, reliance placed by the revenue on the 28 Customs Appeal Nos. 76086-76102, 76103-76129, 75097- 75116, 75560-75589 of 2021 & Customs Appeal Nos. 75070-75090, 75263-75282 of 2021 & Customs Appeal Nos. 75045-75069 of 2021 decision of the Hon‟ble Supreme Court in the Unicorn Case (supra) is clearly distinguishable on facts and we are in complete agreement with the Appellant that the ratio thereof cannot be applied to the instant case.

11. The decision of the Hon‟ble Bombay High Court in the La Tim Metal Case is not only later in time but also takes into consideration the earlier contrary decision of the learned Single judge of the Madras High Court in the Gemini Case (supra) as also the decision of the Honb‟le Supreme Court in the Unicorn Case (supra). Therefore, in terms of the "later the better" principle [Refer - CESTAT Larger Bench decision in Rainbow Silks Vs. CC - 2015 (325) E.L.T. 599] as also in light of the fact that the Bombay High Court decision is by a division bench the same has to be given primacy over the decision of the Hon‟ble Madras High Court in the Gemini Case (supra) following judicial discipline. Therefore, in terms of the aforesaid, the issue at hand is no more res- integra and stands decided in favour of the Appellant by the Hon‟ble Bombay High Court.

12. Accordingly, the assessments in each of the impugned BOE‟s covered by the impugned orders are modified in so far as imposition of SWS is concerned and the appeals are allowed with consequential relief (Order was pronounced in the open court on 22/09/2023.) Sd/-

(P. K. Choudhary) Member (Judicial) Sd/-

(Rajeev Tandon) Member (Technical) Pooja

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