Customs, Excise and Gold Tribunal - Mumbai
M/S Geekay Exim (India) Ltd. vs Commissioner Of Customs (Ap), Mumbai on 5 September, 2001
ORDER J.H. Joglekar, Member (T)
1. On hearing both the sides on the stay application, we find that the main appeal itself could be taken up for disposal. Both sides agreeing, this was done, after granting waiver of pre-deposit of duty confirmed and penalty imposed as prayed for.
2. M/s. Geekay Exim (India) Ltd. present appellants were the holders of a Value Advance Licence. The DEEC book mentioned M/s. Pinnacle Exports Pvt. Ltd. and M/s. Rajkumar Engg. P.Ltd. as the executors of a joint LUT being the supporting manufacturers of the present appellants. Certain goods were imported in terms of Notification No.203/92 Cus in and terms of this licence without payment of duty. Show cause notice dated 24.4.99 was issued alleging that the manufacturers of the export goods had availed of the input stage and thereby contravened the provisions of the aforesaid notification. On this ground, duty was demanded from the 'importers and the licencee' and they were alleged to be liable to penalty. The show cause notice showed M/s Pinnacle Esports Pvt.Ltd. as the importers. The Commissioner observed that the representative of the licence holder had admitted that both the supporting manufacturers had availed of modvat credit but did not produce any documentary evidence regarding reversal thereof. His specific finding reads as under:-
"I find that he licencee's representative admitted that both of the supporting manufacturers availed Modvat but could not produce any documentary evidence regarding reversal of the same. Hence, I find that the condition stipulated under Clauses (v)(a) of Notification No.203/92 Cus dated 19.5.92 has been violated. Since both of the said supporting manufacturers were co-licencees as per DEEC book I cannot make them free from responsibility of availing Modvat as a matter of principle. But I find that no charge was made in the Show Cause Notice against M/s. Raj Kumar Engg. P.Ltd. as all and M/s. Pinnacle Exports P.Ltd. as alicencee. Since the adjudicating authority has to remain within the four walls of the levelled in the show notice, I cannot proceed against them."
3. Having observed this, he confirmed duty against the present appellants of Rs.10,04,486/- and imposed penalty of Rs.1,00,000/- upon them. Hence, the appeal.
4. Shri Kantawala, Id. counsel during the course of the hearing had submitted that no such admission was made by the representative of the appellants before the Commissioner. On the instruction of the Bench, the case record was obtained. The record maintained by the Commissioner indicated that such admission was made. Shri Kantawala, thereafter, submits that the show cause notice having labeled M/s. Pinnacle Exports Pvt.Ltd. as the importers, duty cold not be demanded from the present appellants who were admittedly not the importers. We find this submission to be valid. His action of confirming duty on the licence holders who are not the importers is wrong in law. The proceedings do not show whether any reply was filed by M/s. Pinnacle Exports Pvt. Ltd. nor any discussion as to the requirement of the importers to have discharged the burden of duty. In view of this very infirmity in the impugned order, we allow this appeal and remand the case back to the jurisdictional Commissioner, who shall once again hear the concerned persons viz. the noticees to the show cause notice and pass appropriate orders keeping in mind our observations above.
(Dictated in Court)