Customs, Excise and Gold Tribunal - Hyderabad
Steel Authority Of India vs Cce on 18 August, 1999
Equivalent citations: 2000(90)ECR735(TRI.-HYDERABAD)
ORDER V.K. Ashtana, Member (T)
1. The appellant is a Public Sector Unit, who have obtained clearance to pursue this appeal from the Committee of Disputes in the Cabinet Secretariat. As they have already pre-deposited the entire amount therefore, the stay application vide C/St/828/92 had been considered by this Tribunal on 15.6.1999 and rejected as infructuous and the appeal had been listed for early hearing on 14.7.1999. It was subsequently adjourned to to-day and therefore, both sides are now being heard.
2. This is an appeal against the Order-in-Appeal No. 21/92(v)-Cus. dated 23.7.1992 passed by the Collector (Appeals), wherein demand of duty of Rs. 2,68,96,610/-, confirmed in the Order-in-Original by the Assistant Collector of Central Excise dated 19.2.1992 has been upheld. The issue concerns the levy of differential duty on alleged import of an excess quantity of 8279.590 MTs. of TMBP coils imported at Visakhapatnam. The revenue had under Ad hoc Exemption order dated 4.12.1984 granted exemption on duty in excess of 20% ad valorem on total quantity of 27440 Mts. of this item when imported and the Bombay Customs House had been authorised in the said order directed to ensure that total quantity imported through various parts of India including Bombay does not exceed this stipulated limit. This order was valid upto 30th April, 1984.
3. Heard Sri Habibullah Badsha, senior advocate for the appellants and Sri S. Kannan, learned D.R.
4. The learned senior counsel submits that confusion in co-ordination to ensure that the excess quantity, if any, imported would pay differential duty only at one port of import arose mainly due to the continuous amendments in the allotment order to various end users by the Controllers of Iron & Steel in the Government of India. He submits that there were three such orders namely dated 20.3.1984, 17.4.1984 and finally 30.4.1984. The quantities allocated to the three different actual users were in each one of these orders. As a result, it so happened that in pursuance of the second allotment order dated 17.4.1984 another end user namely M/s. Tin Plate Company of India Ltd. cleared in excess than what was finally allotted to it by the third and final allocation order of 30.4.1984. The quantity cleared in excess was 7064.925 MTs. He further submits that since some more excess was cleared by another actual user at Bombay, therefore, when the entire imports are taken together the total quantity could not exceed the quantity, the quantity for which the Ad hoc Exemption order was issued and hence the demand of duty on the appellants at Visakhapatnam was not legally correct, as whatever quantity was imported in excess has already borne duty at full rates at both Calcutta and Bombay ports. He also submits that the final clearances as far as these appellants are concerned was in consonance with the final allocation order dated 30.4.1984 as noted above. He further submits that in the Order-in-Appeal impugned, the learned Commissioner (Appeals) has held that imports in Calcutta were no concern of his. The learned senior counsel submits that when the Ad hoc Exemption order itself was given on all India basis and it allowed imports through various ports, therefore, this stand taken by the Commissioner (Appeals) was not legally tenable. On the contrary before any duty could have been confirmed, the entire quantity actually imported should have been verified from the Bombay Customs House, who were appointed as the co-ordinators under this Ad hoc Exemption order. He further submits that the differential duty paid on excess quantity imported at Calcutta has since been confirmed by the Tribunal as is reported in a decision in the case of Tin Plate Company of India Ltd. as . This decision of the Tribunal relies upon the final allocation by the Iron & Steel Controller vide his allocation order dated 30.4.1984 noted above.
5. The learned D.R. submits that the Order-in-Appeal impugned is a very detailed order and explains all the details why the duty has been confirmed. He reiterates the said Order-in-Appeal.
6. We have carefully considered the rival submissions and records of the case. We find that the Government of India had issued an Ad hoc Exemption Order for a specified quantity of the said goods to be imported at concessional rate of duty of customs and excise. The Bombay Custom House had been appointed to co-ordinate the various imports through the ports in India including their own imports to ensure that in the final tally the quantities imported totally into the country should not exceed the amount for which the ad hoc exemption had been granted. This mechanism was further complicated by the fact that the goods were imported by the canalising agent which was M/s. SAIL, but were ultimately allocated by the Controller of Iron & Steel in the Ministry at New Delhi to various end users. So we had a situation whether the Bombay Custom House had to give clearances for concessional rates of imports on certain quantities to various Commissioners under the said duty exemption. At the same time, the end users who presented the Bill of Entry to these various Custom Houses were subject to allocations given by the administrative Ministry at New Delhi. What made the matter worse was that these allocations were changed thrice. In between, the clearances continued on the basis of which allocation was in force at the time of clearance of the goods. The net result obtained was that the co-ordination which was envisaged in the Ad hoc Exemption order did not actually take place. As a result at two ports, two Custom Houses alleged that there were imports in excess of the quantity which the Bombay Custom House had allocated for being imported vide these two ports. Furthermore, the Visakhapatnam Custom House relied on the quantity allocated by the second allocation order, whereas, the Calcutta Custom House went by the third and final allocation order. The learned senior counsel submits that emerging out of this total confusion, the Calcutta Custom House demanded and collected differential duty at full tariff rate on certain quantities which they found had been cleared in excess as per the final allocation order. This demand was confirmed in appeal by the Hon'ble Tribunal sitting at Calcutta in the decision of Mis. Tin Plate Company of India Ltd. cited supra. Therefore, the learned senior counsel submits that when the differential duty has already been collected on certain excess quantities by the Calcutta Custom House and confirmed so by the Tribunal, therefore, the second demand on the ground of excess imports at Visakhapatnam was illegal particularly because the order impugned clearly states that the Commissioner (Appeals) was not concerned with regard to the imports at Calcutta, while the Ad hoc Exemption order was issued to cover all India imports through various ports.
7. We find that in view of the above factual position, the matter is more concerned with computation of the imports Bill of Entrywise at each port in India wherein exemption is claimed under the said Ad-hoc Exemption order issued by the Government. Since the duty demanded and paid at Calcutta has already been confirmed by the Tribunal, therefore, it would be most practical that this co-ordination and review is now done by the Visakhapatnam Custom House. In doing so, it may call for various inputs with regard to other ports from the Bombay Custom House, which must be having records of all the imports as it had been appointed as the co-ordinator by the Government. We find that this Tribunal is not in a position to conduct such an exercise of a detailed calculations and computations based on the evidences which themselves have to be collected from the various Custom Houses. Therefore, we find that we have no other alternative, but to set aside the Order-in-Appeal impugned and to remand the matter to the original authority i.e. Assistant Commissioner of Customs, Visakhapatnam Custom House concerned for considering the matter on de novo basis in the light of the above observations and the citations noted above. It is also clarified that the Assistant Commissioner of Customs, Visakhapatnam, shall take into consideration the final allocation order dated 30.4.1984 issued by the Iron & Steel Controller as that was the last and final order of allocation and that order has been taken into consideration by the Hon'ble Tribunal 'in the decision of Mis. Tin Plate Company of India Ltd. cited supra. The Assistant Commissioner of Customs shall give an opportunity to the present appellants to be heard in detail and the appellants shall be at liberty to file such evidence is necessary in the matter.
8. The appeal is, accordingly, allowed by way of remand.
(Pronounced and dictated in the open court).