Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Commissioner Of Customs, (Export), ... on 13 August, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/S/41716/2013 & C/41930/2013
(Arising out of Order-in-Appeal C. Cus. No. 825/2013 dated 17.6.2013 passed by the Commissioner of Customs (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
Honble Shri R. Periasami, Technical Member
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of the Order?
4. Whether order is to be circulated to the Departmental authorities?
M/s. Coromandel International Ltd. Appellant
Vs.
Commissioner of Customs, (Export), Chennai Respondent
Appearance Shri S. Muthuvenkataraman, Advocate, for the Appellant Shri M. Rammohan Rao, DC (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Honble Shri R. Periasami, Technical Member Date of Hearing: 13.08.2014 Date of Decision: 13.08.2014 Final Order No. 40517/2014 Per P.K. Das As the issue lies in a narrow compass, after disposing the stay application, we take up the appeal for hearing.
2. After hearing both sides and on perusal of the records, we find that the issue involved in this case is as to whether the imported goods namely Zinc EDTA 12% can be a fertilizer classifiable under CTH 3105 9090 as claimed by the appellant or as separate chemically defined compound classifiable under CTH 2922 4990 as held by the adjudicating authority. The appellant filed appeal before the Commissioner (Appeals) against the adjudication order. By stay order, Commissioner (Appeals) directed to make a predeposit which was not complied by the appellant. Hence, by the impugned order, Commissioner (Appeals) rejected the appeal for non-compliance of the stay order.
3. After considering the submissions of both sides, we find that the Commissioner (Appeals) in other cases, on the similar import, held the same item would be classifiable under CTH 3105.90. Revenue filed appeal against the said orders. Incidentally, it is noticed in todays cause list that on the same issue, Revenue has filed appeal against Order-in-Appeal No. 856/2013 dated 25.6.2013 (Commissioner of Customs, Chennai Vs. ER Agro Nutrient). In that case, the same Commissioner (Appeals) held that the imported items falls for classification under CTH 3105.90 as micro nutrient and not under CTH 29.22 as claimed by the Department. It has also extended the benefit of exemption from payment of CVD and SAD and set aside the adjudication order.
4. In our considered view, as the Commissioner (Appeals) has already the same imported items under CTH 3105.90, then the appellant had made out a prima facie case for waiver of predeposit of the entire amount of duty along with interest and penalty. The Honble Supreme Court in the case of J.N. Chemical (Pvt. ) Ltd. Vs. CEGAT 1991 (53) ELT 543 (Cal.) held that when appellant having a good prima facie case being fully covered by another decision, predeposit of duty and penalty ought to have been dispensed with.
5. In view of the above discussion, we direct the Commissioner (Appeals) to decide the appeal without insisting for any predeposit. The appeal is allowed by way of remand to the Commissioner (Appeals). The stay application is disposed of.
(Dictated and pronounced in open court)
(R. PERIASAMI) (P.K. DAS)
Technical Member Judicial Member
Rex
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