Custom, Excise & Service Tax Tribunal
M/S Vishal Enterprises vs Cce, Chandigarh on 31 October, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing/decision: 31.10.2014 For Approval and Signature: Honble Mr. Justice G. Raghuram, President 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Custom Appeal No. 632 of 2011 (Arising out of order-in-appeal No. 01/Cus/CHD/2011 dated 02.09.2011 passed by the Commissioner of Customs & Central Excise (Appeals), Chandigarh). M/s Vishal Enterprises Appellant Vs. CCE, Chandigarh Respondent
Appearance:
Ms. Rinki Arora, Advocate for the appellant Shri Pramod Kumar, Jt. CDR for the Respondent Coram: Honble Mr. Justice G. Raghuram, President Final Order No. 54205/ 2014 Per: Justice G. Raghuram:
Heard the learned Counsel for the appellant and ld. Jt. CDR for the Revenue.
2. This appeal is preferred against the order of the learned Commissioner (Appeals), Customs & Central Excise, Chandigarh dated 20.09.2011. The appellate authority confirmed the primary adjudication order dated 04.03.2010 passed by the Assistant Commissioner, Central Excise, Chandigarh to the extent of recovery of customs Duty of Rs.1,14,562/- alongwith interest while setting aside the mandatory penalty imposed by the primary authority under Section 114A of the Customs Act, 1962.
2. Proceedings were initiated by a show cause notice dated 05.02.2009 issued by the Assistant Commissioner, Central Excise Division, Chandigarh. This notice alleged that the assessee (appellant herein) had failed to remit customs duty of Rs. 1,14,562/- which was liable to be remitted in the stated circumstances. The notice alleged that the assessee had filed a Bill of Entry for home consumption on 05.08.2008 seeking clearance of 240 bottles of imported liquor valued at Rs. 71,602/- from the Central warehousing Corporation, Plot No. 5, Industrial Area, Phase-II, Chandigarh. Assessee claimed exemption on the ground that the goods are consigned to M/s Taj G.V.K. Hotel & Resorts Ltd. Chandigarh against release advice No. 6434 dated 16.07.2008 issued by ICD, Hyderabad; the consignee - M/s Taj G.V.K. Hotel & Resorts Ltd., Chandigarh is the holder of Licence No. 09/72/071/00002/AM09 dated 25.6.2008; and that the release advice (TRA) authorises the said hotel to import goods without payment of duty under Notification No. 92/04-Cus. dated 10.09.2004 as amended. Revenue alleged that the goods were assessed to nil rate of duty on 06.05.2008. However, the TRA / duty credit entitlement certificate issued by the Customs & DGFT authorities at Hyderabad was in the name of M/s Taj G.V.K. Hotel & Resorts Ltd., Hyderabad and not M/s Taj G.V.K. Hotel & Resorts Ltd., Chandigarh and since the assessee had neither imported the goods nor transferred the goods or produced a certificate in respect of M/s Taj Group Company or in respect of a hotel managed by the said Group there was no eligibility for exemption. It requires to be noticed that the show cause notice did not allege that the liability to remit of customs duty arises on account of the facts that the goods were cleared from the Central Warehousing Corporation, Chandigarh and not the Air Cargo Complex, Delhi.
3. Proceedings culminated in the order dated 04.03.2010 passed by the primary authority. The primary authority confirmed custom duty as proposed and also imposed penalty under Section 114A of the Customs Act apart from interest under Section 28 of the Act. The primary authority confirmed the liability on the singular basis that M/s Taj G.V.K. Hotel & Resorts Ltd., Hyderabad is not the authorised entity entitled to exemption under Notification No.92/04, since the exemption is available to M/s Taj G.V.K. Hotel & Resorts Ltd., Chandigarh.
4. Aggrieved thereby, the assessee preferred an appeal which was disposed of on 02.09.2011 by the order impugned herein.
5. Ld. appellate authority after considerable effort at the appellate stage concluded after requisite enquiries made with the Deputy Commissioner, ICD Hyderabad revealed that the Chandigarh based consignee (M/s Taj G.V.K. Hotel & Resorts Ltd.,) was a group company of M/s Taj G.V.K. Group and was thus eligible to import duty free liquor in terms of the licence dated 25.06.2008 issued by M/s Taj Krishna. Learned Appellate Commissioner however confirmed the demand on a ground not alleged in the show cause notice and never put to the assessee. The appellate Authority records that though TRA No. 6434 dated 16.7.2008 was issued by the ICD Hyderabad at the Delhi Air Cargo Complex the same appears to have been used to import duty free liquor, contrary to conditions stipulated in the TRA; that despite opportunity, the appellant assessee failed to produce the original TRAs to establish that clearance from M/s Taj G.V.K. Hotel & Resorts Ltd., Chandigarh were duly accounted for in the TRA advice dated 16.7.2008.
6. The learned appellate authority found in favour of the appellant to the extent that the clearances were for the benefit of an entity which was entitled for exemption under Notification No. 92/04-Cus. The finding that the TRAs did not authorise clearance from M/s Taj G.V.K. Hotel & Resorts Ltd., Chandigarh but authorised clearances from the Air Cargo Complex, Delhi was a finding of fact on an allegation not set out in the show cause notice. On this analyses there is a clear failure of natural justice as duty is confirmed on an allegation not set out in the show cause notice.
7. For the aforesaid reasons, the impugned order of the learned Appellate Commissioner (Appeals), Customs and Central Excise, Chandigarh-I dated 02.09.2011 is unsustainable and is accordingly quashed. The appeal is allowed but no order as to costs.
(Justice G. Raghuram) President Pant