Custom, Excise & Service Tax Tribunal
Larsen & Toubro Ltd vs Commissioner Of Customs, Appeal Unit, ... on 14 July, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/1038/05 [Arising out of Orders-in- Appeal No. 52/2005 TE(ACC) dated 27/5/2005 passed by the Commissioner of Customs (Appeals, Airport, Mumbai-99] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, 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 :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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Larsen & Toubro Ltd
:
Appellant
VS
Commissioner of Customs, Appeal Unit, Airport
:
Respondent
Appearance
Shri. Prasad Paranjape, Advocate for the Appellants
Shri. D.K. Sinha, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 14/7/2016
Date of decision /2016
ORDER NO.
Per : Ramesh Nair
The Appellant M/s. Larson & Turbro Ltd. imported diverse equipment and claimed the benefit of exemption Notification No. 132/94-Cus dated 20.06.1994. The benefit of said notification was granted provisionally to the appellant on the execution of bonds. The Assistant Commissioner of Customs, issued a Show Cause Notice asking why 6 bonds executed by the appellant may not be enforced & duty should not be recovered. It was alleged that the appellant have not fulfilled the condition prescribed in the said Notification No. 132/94-Cus dated 20.06.1994 inasmuch as the benefit of the said notification is available to those goods which are specified in the table given in the notification when imported into India in connection with petroleum operations to be undertaken under the contract entered into by Government of India & foreign company or companies and no foreign exchange remittance should be involved in such import. It was further alleged that the appellant being a foreign company, has not considered the goods as inputs. The appellant also did not show that foreign exchange was remitted against the goods imported. The adjudicating authority adjudicated the Show Cause Notice without any personal hearing. Being aggrieved by the Order-in-Original dated 09.02.2005, the appellant filed appeal before the Commissioner (Appeals). The Ld. Commissioner (Appeals) by the impugned order disposed of appeal. The Ld. Commissioner in the impugned order has almost allowed the exemption except that the condition No. 3 of the adhoc exemption notification in as much as they have not produced the certificate regarding end use of the imported goods to which one month time was given to the appellant to produce the said certificate, being aggrieved by the impugned order, appellant filed this appeal.
2. Shri Prasad Paranjape, Ld. Counsel for the appellant submits that the original order was passed without any hearing, despite the appellant sought time for filing the reply & personal hearing. Thus the original authority has not followed the principles of natural justice. It is further submitted that the Ld. Commissioner(Appeals) satisfied with all other conditions, however, he has contended that the appellant has not fulfilled he condition No. 3 of the said Notification 132/94-Cus and adhoc exemption order dated 17.02.2004. In this regard he submits that this issue was not raised in the Show Cause Notice therefore the order is beyond the scope of Show Cause Notice. He further submit that there is no conditions prescribed in the notification for producing end use certificate.
3. Shri D.K. Singh Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. We have carefully considered the submissions made by both sides and perused the records.
5. We find that Ld. Commissioner(Appeals) almost held that the appellant is entitled to the exemption Notification No. 132/94-Cus and adhoc exemption order 17/2004. However, he directed the original authority to verify the certificate to be produced by the appellant. On going through notification we find that in the notification the following conditions is provided Provided that a certificate is produced in each case to the Assistant Collector of Customs from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Petroleum and Natural Gas that the goods are required for such petroleum operations and have been imported under aforesaid contract.
From the above conditions, it is clear that the appellant is under obligation to produce the said certificate, therefore we do not find any infirmity in the impugned order, whereby it was directed to produce the end use certificate as required under the notification. In this scenario, we are of the view that the matter needs to be remanded to original authority to pass a fresh order by taking into account the observations of the findings given by the Commissioner(Appeals) in the impugned order. We therefore, allow the appeal by way of remand to the adjudicating authority for passing a fresh denovo adjudication order. Needles to say that the appellant shall be given sufficient opportunity of personal hearing. Being the matter pertaining to the year 2005, we expect early disposal of the matter in denovo adjudication. Appeal is allowed by way of remand to the Original Adjudicating Authority.
(Pronounced in Court on (15/11/16) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 5 C/1038/05