Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Exports), ... vs M/S. Asvini Fisheries (P) Ltd on 1 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal Nos. C/212/2007
(Arising out of Order-in-Appeal C. Cus. No. 111/2007 dated 23.2.2007 passed by the Commissioner of Customs (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Commissioner of Customs (Exports), Chennai Appellant
Vs.
M/s. Asvini Fisheries (P) Ltd. Respondent
Appearance Shri M. Rammohan Rao, DC (AR) for the Appellant Shri R. Asokan, Advocate, for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 01.05.2014 Date of Decision: 01.05.2014 Final Order No. 40291/2014 Revenue filed this appeal against the order of the Commissioner (Appeals). The relevant facts of the case, in brief, are that the respondents were exporting marine products namely prawns/shrimps through Chennai Sea Port. Department was levying and collecting cess as customs duty @ 0.5% on exports of prawns / shrimps under Agricultural Produce Cess Act, 1940. The respondent challenged the levy of cess and the assessment orders in the Shipping Bills before the Honble Madras High Court vide Writ Petition No.12097 98/1999. The Honble Madras High Court vide order dated 16.12.2006 directed the respondent to file appeal under Section 5A of the Agricultural Produce Cess Act, 1940 before the appellate authority. In pursuance of the order dated 16.12.2006, the Commissioner (Appeals) passed the impugned order holding that cess is not leviable on export of prawns/shrimps and the cess paid by the respondent would be refunded to them.
2. After hearing both sides and on perusal of the records, I find that the Commissioner (Appeals) passed the order following the decision of the Tribunal in the case of Commissioner of Customs Vs. Edhayam Frozen Foods 2005 (190) ELT 72. In the instant appeal, it is contended by Revenue that they have filed against the order of the Tribunal before the Honble Madras High Court which is still pending. It is seen that the Honble Madras High Court dismissed the appeal filed by the Revenue in the case of Commissioner of Customs Vs. Edhayam Frozen Foods 2008 (230) ELT 225 (Mad.). So, the issue is no longer res integra and the Commissioner (Appeals) has rightly held that cess is not leviable on export of prawns/shrimps. The learned Authorized Representative on behalf of Revenue submits that the Commissioner (Appeals) also directed to refund the amount without considering the limitation and other provisions of law under Section 27 of the Customs Act, 1962. In this context, the learned counsel on behalf of the respondent fairly submits that the proceeding against the refund claim is not involved in the present appeal. He submits that refund of the amount would arise when they file the refund application under Section 27 of the Customs Act, 1962. He further submits that the observation of the Commissioner (Appeals) in the impugned order is a consequential benefit which will arise after filing the refund claim.
3. I agree with the submission of the learned counsel that the present proceeding is not related with the refund claim and therefore the submission of the learned AR has no relevance. In any event, refund claims would be decided in accordance with law. In view of the above discussions, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected with the above observation.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 3