Custom, Excise & Service Tax Tribunal
Atlantic Shipping Pvt Limited vs Jamnagar(Prev) on 7 September, 2018
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No. C/188-189,376/2010-DB
[Arising out of OIA-18-19/COMMR-A-/JMN/2010 dated 21.02.2010 passed by the Commissioner
of CUSTOMS-JAMNAGAR (PREV)]
[Arising out of OIA-90/COMMR-A-/JMN/2010 dated 15.06.2010 passed by the Commissioner of
CUSTOMS-JAMNAGAR (PREV)]
M/s Atlantic shipping Pvt. Ltd Appellant
Vs
C.C. Jamnagar (Prev) Respondent
Represented by:
For Appellant: Shri J.C. Patel (Advocate)
For Respondent: Shri K J Kinariwala (A.R.)
CORAM:
HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL)
HON'BLE MR. RAJU, MEMBER (TECHNICAL)
Date of Hearing: 30.08.2018
Date of Decision: 07.09.2018
Final Order No. A/ 11905-11907 /2018
Per: Raju
Appeal No. C/188-189/2010-DB have been filed by the M/s
Atlantic Shipping Pvt. Ltd against order confirmed demand of custom
duty levied under Section 116 of the Finance Act, 1999. In these two
cases, Sh. JC Patel appeared for the appellant. In appeal No.
C/376/2010-DB of the same party none appeared. Ld. AR points out
that in all 3 matters have common issue involved is if additional duty of
customs levied under Section 166 of the Finance Act, 1999 can be
demanded in respect of goods which are eligible for Exemption
Notification No. 94/96-Customs dated 06.12.1996.
2|Page C/188-189, 376/2010-DB
2. Ld. Counsel for the appellant, Sh. JC Patel argued that in the
proceeding, the impugned order grants the benefit of Notification 94/96-
Customs and consequently by virtue of Clause 3 of Section 116 of the
Finance Act, 1999, they become eligible to full exemption in respect of
the additional duty of customs levied under Sub Section (1) of the
Section 116 of the Finance Act, 1999. Ld. Counsel relied on the decision
of Tribunal in the case of Eurotex Industries & Exports Ltd Vs. CC- 2017
(345) ELT 532 and in the case of Toyota Kirloskar Motor P. Ltd Vs. CCE-
2007 (217) ELT 403. He argued that so long as the goods are granted
Exemption under Notification 94/96-Customs, they would be entitled to
full exemption from the levy of additional duty of customs under Sub
Section (1) of the Section 116 of Finance Act, 1999.
3. Ld. AR relied on the impugned order. He also relied on the
decision of Tribunal in the case of Essar Oil Limited 2014 (312) ELT 492
and in the case of S.J.L.T. Textile Pvt. Ltd 2013 (297) ELT 144.
4. We have gone through rival submission, we find that Section 116
of Finance Act reads as follows:
"Additional duty of customs (high speed diesel oil).
116. (1) In the case of goods specified in the Second Schedule,
being goods imported into India, there shall be levied and
collected as an additional duty of customs an amount calculated
at the rate set forth in the said Schedule.
(2) The additional duty of customs referred to in Sub-section
(7), shall be in additional to any other duties of Customs
chargeable on such goods under the Customs Act, or any other
law for the time being in force.
(3) The provisions of the Customs Act, and the rules and
regulations made thereunder, including those relating to refunds
and exemptions from duties, shall, as far as may be, apply in
relation to the levy and collection of the additional duty of
customs leviable under this section in respect of any goods as
they apply in relation to the levy and collection of the duties of
Customs on such goods under Act or those rules and
regulations, as the case may be."
3|Page C/188-189, 376/2010-DB
Sub Section (3) thereof extents the benefit of Exemptions under
Customs Act also to the additional duty of customs levied under the
Section 116 of Finance Act, 1999. Ld. Counsel relied on the decision of
Tribunal in the case of Toyota Kirloskar Motor P. Ltd (Supra). In the said
case while interpreting provision similar to Sub Section (3) of Section
116 of Finance Act, 1999, in respect of levy of National Calamity
Contingent duty levied under Section 129 of the finance Act 2001, the
Tribunal observed as follows:
"4. Heard both sides. The National Calamity Contingent Duty was
introduced in the budget of 2001 by virtue of Section 129 of the
Finance Act, 2001. Section 129 is reproduced herein below:
(1) "In the case of goods specified in the Seventh Schedule,
being goods manufactured or produced, there shall be levied and
collected for the purposes of the Union, by surcharge, a duty of
excise, to be called the National Calamity Contingent Duty
(hereinafter referred to as the National Calamity duty), at the
rates specified in the said Schedule.
(2) The National Calamity duty chargeable on the goods
specified in the Seventh Schedule shall be in addition to any other
duties of excise chargeable on such goods under the Central Excise
Act, 1944 or any other law for the time being in force.
(3) The provisions of the Central Excise Act, 1944 and the
Rules made thereunder, including those relating to refunds and
exemptions from duties and imposition of penalty, shall as far as
may be, apply in relation to the levy and collection of the National
Calamity duty leviable under this section in respect of the goods
specified in the Seventh Schedule as they apply in relation to the
levy and collection of the duties of excise on such goods under that
Act or those Rules, as the case may be."
A close reading of the above reveals that NCCD is indeed a duty of
excise. Further it is seen that the provisions of Central Excise Act,
1944 especially with regard to exemptions from duties would be
applicable to NCCD leviable under Section 129. The CBEC has
issued a Circular 60/01/06-CX dated 13-1-2006 with regard to
export of goods and has clarified that none of the duties
chargeable under any Act of Parliament which provides that in
relation to levy and collection of such duty, the provisions of
Central Excise Act and the rules made thereunder shall as far as
may be apply; was/is payable on export of goods under bond.
Such duties, inter alia include the following:-
..............
..............
The National Calamity Contingent duty leviable under Section 136 of the Finance Act, 2001 (14 of 2001), as amended by Section 169 of the Finance Act, 2003 (32 of 2003) which was amended by Section 3 of the Finance Act, 2004 (13 of 2004).
4|Page C/188-189, 376/2010-DB From the Section 129 of the Finance Act, 2001 and also from the above Circular issued by the CBEC, it is very clear that Exemption Notification 108/1995 is applicable also to NCCD. The learned Advocate further brought to our notice the decision of this Tribunal in the case of Gokak Mills v. CCE, Bangalore - 2001 (129) E.L.T. 523 (Tri -Bang), wherein it was held while interpreting Notification No 214/86, Central Excise that the said notification issued under Rule 8(1) of Central Excise Rules exempts only basic excise duty and does not cover additional duty of excise leviable under Additional Duties of Excise (Goods of Special Importance) Act, 1957. The above was challenged in the Apex Court and the Apex Court allowed the appeal reversing the Tribunal's decision [2002 (146) E.L.T. A309 (S.C.)].
In these circumstances, the impugned order cannot be sustained. Hence, we allow the appeal with consequential relief." Drawing the ratio of said decision, we find that so long as the exemption Notification 94/96-Customs is extended to the goods, the benefit of exemption has to be allowed in respect of additional duty of customs levied under sub Section (1) of Section 116 of Finance Act, 1999.
5. Ld. AR relied on the decision of Tribunal in case of Essar Oil (Supra). It is seen that the said decision was passed in the circumstance when provision of Sub Section (3) of Section 116 was not brought to the notice of the Tribunal, thus, the said decision is of not avail to the Revenue. Ld. AR also relied on the decision of Tribunal in the case of S.J.L.T. Textile Pvt. Ltd (Supra). It is seen that the said decision was passed ex-party, without any representation from the appellant. Ld. AR relied on the instruction F. No. 305/148/2004-FTT dated 11.10.2004, which contains direction contrary to the ratio of decision in the case of Toyota Kirloskar Motor P. Ltd (Supra). It is seen that this is a mere direction without any justification, therefore, no comment are warranted on the same.
6. In view of above, it is held that the benefit of Exemption from additional duty of customs levied under Sub Section (1) of section 116 of Finance Act, 1999 has to be extended to the goods which are entitled
5|Page C/188-189, 376/2010-DB to exemption under Notification 94/96-Customs. All the appeals are allowed in above terms.
(Pronounced in the open court on 07.09.2018)
(Raju) (Ramesh Nair)
Member (Technical) Member (Judicial)
Seema