Custom, Excise & Service Tax Tribunal
Applied Materials India Pvt. Ltd vs Commissioner Of Customs, Central ... on 4 July, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH : ALLAHABAD COURT No. I APPEAL No. C/60046/2013-CU[DB] (Arising out of Order-in-Original No. 10/COMM/CUSTOMS/2013 dated 04/07/2013 passed by Commissioner of Customs, Central Excise & Service Tax, Noida) Applied Materials India Pvt. Ltd. Appellant Vs. Commissioner of Customs, Central Excise & Service Tax, Noida Respondent
Appearance:
Ms. Vidushi Shubham (Advocate) for Appellant Shri Mohd. Altaf (Assistant Commissioner) AR for Respondent CORAM: Honble Mr. Anil Choudhary, Member (Judicial) Honble Mr. Anil G. Shakkarwar, Member (Technical) Date of Hearing : 04/07/2017 Date of Decision : 04/07/2017 FINAL ORDER NO. 70600/2017 Per: Anil Choudhary
The issue in this appeal by the appellant an importer is whether the Order-in-Original impugned herein dated 4th July, 2013 passed by the respondent-Commissioner is in conformity with the directions of Hon'ble Allahabad High Court passed in writ tax petition No. 579 of 2013 being order dated 24 May, 2013.
2. The brief facts are that the appellant imported spare parts for Solar Thin-Film Line to support their client PV Technology India Private Ltd (Now Moser Baer Solar Ltd), a SEZ unit, on different dates during January, 2008 to December, 2008. After import these goods were warehoused under bond in CMA CGM, CFS, inside CONCOR complex, ICD, Dadri, on the ground that the clearance of the said goods shall be taken as and when their requirement arises to support the continuous manufacturing process of the said SEZ unit. For this purpose the appellant importer had executed double duty bonds (DD Bond) in 2008 in terms of Section 59(1) of the Customs Act, 1962, thereby binding themselves that they will observe all the provisions of this Act and the Rules and regulations in respect of such goods.
3. As per provisions of Section 61 of the Customs Act any goods may remain warehoused till the expiry of one year provided that it is not in the category of sub-Section (a) or (aa) of the said Section of the Customs Act. The provisions of Section 61(1)(a) and 61(1)(aa) were not applicable in their case as the goods covered against these bonds were not capital goods intended for use in any 100% EOU. It was communicated by the Department to appellant vide office letter C. No. 1783 dated 30 August, 2010. That as per provisions of Section 61(1)(b), the warehousing period in their case is only one year. Since the goods covered in the impugned bond have already been in the warehouse for about two years, accordingly, the appellant importer was asked to pay the duty along with interest on these warehoused goods and clear them immediately. Further allegation of Revenue is that the appellant instead of complying with the said office letter, intimated vide the letter dated 8/12 October, 2010. That they were under the misconception that the warehousing period applicable in their case is three years and due to which they could not apply for extension of the same during the prescribed period of time.
4. Accordingly, it appeared to Revenue that the appellant importer failed to remove these goods during the warehousing period permitted under Section 61 of the said Act and instead left the goods warehoused after the expiry of warehousing period. Further, under the provisions of Section 72(b) where any goods in respect of which a bond has been executed under Section 59 and which have not been cleared for home consumption or exportation to the satisfaction of proper officer, the proper officer may demand from the owner of such goods, who shall pay forthwith, the duty chargeable on such goods together with all penalties, rent, interest and other charges payable in respect of such goods. Since it was the duty of the appellant to comply with the provisions of Section 61 of the Act and they have failed to do so. Accordingly, it appeared that they rendered themselves liable for penalty, in terms of Section 117 of the Customs Act.
5. Further, relevant facts are that in response to the application of the appellant dated 08 October, 2010, the Department/Office of Additional Commissioner Customs, ICD, Dadri vide letter dated 4 February, 2011 No. VIII (30) ICD/DD/Bond/09 informed the appellant with regard to their application. The Honble Commissioner have been pleased to order and permit re-export the imported goods as per list Annexure A and B in respect of which Double Duty Bound were submitted to this office. The warehousing period has also been extended for a further period of six months. Thereafter, as it appears that for want of jurisdiction the matter was referred to the office of the Chief Commissioner to consider the matter of extension of warehousing period as well as permission for re-export. The said issue was considered by the Chief Commissioner, as has been recorded in para-3.3 of the impugned OIO, wherein it is recorded Hon'ble Chief Commissioner of Customs, Meerut Zone, Meerut vide his order dated 09 February, 2011 on Note Sheet page 13 14 (of C. No VIII (30) CUS/CMA Double Duty/Applied/1326/10) after considering all facts stated that "There appears to be no valid grounds for extension. Action as per law to be taken for recovery of duty".
6. According to the counsel for the appellant, this order of rejection dated 9 February, 2011 was never communicated to them. Thereafter the appellant by their letter dated 07 March, 2011 again applied to the Assistant/Deputy Commissioner of Customs, CFS Dadri for permission to re-export from the bonded warehouse stating therein that as the imported spare parts support PV Technologies India Ltd (MBI) SEZ units Greater Noida for solar panel thin film line. These parts were meant to be supplied to PV Technologies on free of cost basis to support them during solar power installation. Now, as the installation is over, these parts are no more required and become obsolete. Hence, permission was sought to re-export the goods to the global distribution centre of the appellant located in Taiwan.
7. The Revenue issued show cause notice dated 15/04/2011 without mentioning anything about the order of rejection dated 9 February, 2011 by the Chief Commissioner and demanding duty of Rs. 53,78,478/- involved on the goods under the provisions of Section 72 of the Customs Act with interest and further penalty was proposed under Section 72 read with Section 117 of the Customs Act for alleged contravention of the provisions of Section 61(1)(b) of the Act. The appellant thereafter filed reply to the show cause notice being reply dated 22 November, 2011. Further, during the pendency of the adjudication of the SCN they moved the Hon'ble Allahabad High Court in writ tax petition being writ tax No. 579 of 2013 for seeking permission to re-export mentioning therein that their application dated 07 March, 2011 filed before the Commissioner of Customs Noida for obtaining permission to re-export of the goods which are lying in the warehouse within his jurisdiction is still pending and not been decided So far. The Hon'ble High Court in results of the parties disposal requisition by passing the following order: "We see no reason why the aforesaid applications of the petitioner (07/03/2011 and 22/11/2011) are not been disposed of by the respondent Commissioner even after passage of almost 2 years. In such circumstances, the instant writ petition is disposed off with a direction to respondent Commissioner to decide the aforesaid applications of the petitioner/appellant within a period of one month from the date of production of a certified copy of the order".
8. Thereafter it appears from the impugned order in original that the order of the Hon'ble High Court have been purportedly complied in the following terms: "As regards the noticee/appellant's request for re-export, there are numerous judgements by the higher judicial forums that Department cannot travel beyond the scope of show cause notice and therefore, refrain from examining the same. This is also reiterated in the case of Commissioner Customs, Mumbai v/s Toyo Engineering India Ltd 2006(201) ELT 513 (SC).
9. Heard the parties.
10. This matter was earlier heard on 11/01/2017 when we noticed that there appears to be no proper consideration and disposal of the direction of the Hon'ble Allahabad High Court in the aforementioned writ petition by the learned Commissioner. Accordingly, we made a specific inquiry from the Revenue by issuing interim order number 1/2017 dated 11 January, 2017 as to how such directions of the High Court have been complied with. In response thereto the learned DR for Revenue have filed letter dated was 01/03/2017, C. No VIII (15) REV/CESTAT/10/Applied Materials/NC/53/2017 from the office of the Principal Commissioner of Customs, Noida, Customs Commissionerate stating with reference to the query of this Tribunal dated 11/01/2017 as follows: "In this regard, it is submitted that the said order dated 24 May, 2013 of Hon'ble High Court, Allahabad was accepted and in compliance, the petitioner's application was decided by the Commissioner, Noida Customs vide order-in-original no. 10/Commissioner/Customs/2013 dated 04/07/2013. Enclosing an order which is the impugned order for hearing.
11. Having considered the rival contentions we find that the order of Hon'ble High Court dated 24 May, 2013 have not been complied with. As claimed by the Department in the said order in original, it appears the learned Commissioner have refused to comply with the order of the Hon'ble High Court stating that he cannot travel beyond the scope of show cause notice and therefore, refrain from examining the same. We have gone through the entire order in original and we have nowhere found any reference and/or consideration of the said order of the Hon'ble High Court dated 24th may 2013.
12. Accordingly, we hold that the order in original impugned herein is not maintainable. We also hold that the order dated 9 February, 2011 passed by the Chief Commissioner of customs, Meerut zone, Meerut referred to in para-3.3 of the impugned order is a nullity and nonest as the said order has never been communicated to the appellant which we have got civil consequences on them. Accordingly, we allow this appeal and set aside the impugned order-in-original. We further direct the learned Commissioner to decide the representation dated 07/03/2011 read with representation dated 22/11/2011 in terms of the order of the Hon'ble High Court dated 24th of may 2013 for grant of permission to re-export the goods lying in the warehouse. On our query. The learned counsel for the appellant have confirmed that the goods are still lying in the warehouse. Order be issued Dasti.
(Dictated and pronounced in Court) Sd/- Sd/-
(Anil G. Shakkarwar) Member (Technical) (Anil Choudhary) Member (Judicial) Ankit 1 6 APPEAL No. C/60046/2013-CU[DB]