Custom, Excise & Service Tax Tribunal
Pcs Industries Ltd vs Commissioner Of Customs, Pune on 12 June, 2013
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/720/03
(Arising out Order-in-Original No. 05/Cus/2003 dated 26.6.2003 passed by the Commissioner of Customs, Pune)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. S.K. Gaule, Member (Technical)
1. Whether Press Reporters may be allowed to see No
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
PCS Industries Ltd.
Appellant
Vs.
Commissioner of Customs, Pune
Respondent
Appearance:
Shri M.H. Patil, Advocate with Shri R. Ravindran, Advocate for the appellant Shri V.C. Khole, DC (AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. S.K. Gaule, Member (Technical) Date of hearing : 12-06-2013 Date of decision : 12-06-2013 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) The appellant are in appeal against the impugned order wherein the benefit of the Notification 36/96-Cus dated 23.07.1996 has been denied by the adjudicating authority.
2. The facts of the case are that the appellant imported certain inputs like Epoxy resin, DCDA Powder and Dy hard 2MI Powder for use in the manufacture prepregs and unclad laminates. The appellant claimed exemption under Notification 36/96 read with Notification 13/97 as amended with Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Availing the benefit of the above said Notification the appellant cleared the goods/inputs on payment of concessional rate of duty. The goods were used by the appellant in the manufacture of end product but some quantities of these inputs could not be fully utilised in manufacture of final product. Therefore, a show-cause notice was issued by the Commissioner of Customs, Pune to the appellant for demand of differential duty from the appellant. The duty demand was confirmed. Aggrieved from the same, the appellant is before us.
3. Shri M.H. Patil, ld. counsel for the appellant submits that the Commissioner of Customs has no jurisdiction to issue show-cause notice as per Condition no. 8 of the Notification 36/96 dated 23.7.1996. He further submits that the issue is squarely covered by the decision of the Hon'ble Apex Court in the case of BPL Sanyo reported in 2004 (174) ELT 3 on merits.
4. On the other hand, the ld. AR reiterates the finding of the impugned order.
5. Heard both sides. Considered the submissions.
6. Without going into the merits of the case first we have to decide whether the Commissioner of Customs, Pune is having jurisdiction to issue show-cause notice to the appellant or not. To decide this issue, it is proper to read the language of Notification 36/96 condition no.8 which specifically deals with the issue of jurisdiction which is reproduced as under:-
8. Recovery of duty in certain cases. - The Assistant Commissioner of Central Excise shall ensure that the goods imported are used by the manufacturer for the intended purpose and in case they are not so used take action to recover the amount equal to the difference between the duty leviable on such goods but for the exemption and that already paid at the time of importation. A plain reading of the condition stipulates that it is the duty of the Asst. Commissioner of Central Excise to take action against the assessee if any of the conditions of the Notification 36/96 is violated by the assessee.
7. From the above said observation we find that in this case instead of Asst. Commissioner of Central Excise, the ld. Commissioner of Customs, Pune has issued show-cause notice which is beyond his jurisdiction. Therefore without going into the merits of the case, we hold that the Commissioner of Customs, Pune has no jurisdiction to issue show-cause notice in the present case. Accordingly, impugned order is set aside, appeal is allowed with consequential relief, if any.
(Dictated in Court) (S.K. Gaule) (Ashok Jindal) Member (Technical) Member (Judicial) SR 4