Custom, Excise & Service Tax Tribunal
C.C., Kandla vs Varsana Ispat Ltd on 14 February, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.C/12616,12686,12685/2014-DB [Arising out of OIO-KDL/COMMR/02/2014-15 dated 09.04.2014 passed by the C.C. Kandla] [Arising out of OIO-KDL/COMMR/03/2014-15 dated 10.04.2014 passed by the C.C. Kandla] Appeal No.C/13526, 13528/2014-DB [Arising out of OIO-KDL/COMMR/11/2014-15 dated 07.07.2014 passed by the C.C. Kandla] [Arising out of OIO-KDL/COMMR/12/2014-15 dated 07.07.2014 passed by the C.C. Kandla] Appeal No.C/13889,13959,13960/2014-DB [Arising out of OIO-27/COMMR/O&A/2014 dated 14.10.2014 passed by the C.C. Ahmedabad] [Arising out of OIA-267-268/COMMR-A-/JMN/2014 dated 18.09.201 passed by the C.C.Jamnagar(prev)] C.C., Kandla Appellant Varsana Ispat Ltd. Varsana Ispat Ltd. Gallant Metal Ltd. Gallant Metal Ltd. Meghmani Finechem Ltd. Madhu Silica Pvt. Ltd. Aquagel Chemicals Pvt. Ltd. Vs Varsana Ispat Ltd. Respondent
C.C. Kandla C.C. Kandla C.C. Kandla C.C. Kandla C.C. Ahmedabad C.C. Jamanagar(prev) C.C. Jamanagar(prev) Represented by:
For Appellant: Mr. Aditya Tripathi, R.R. Dave (Advocate/Cons.) For Respondent: Mr. S.N. Gohil (A.R.) CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) HONBLE Mr. Raju, MEMBER (TECHNICAL) Date of Hearing/Decision:14.02.2018 Final Order No. A / 10316-10323 /2018 Per: Dr. D.M. Misra All these appeals are taken up pursuant to the order of the Larger Bench dt.16.01.2017. The common major issue involved in all these appeals relates to classification of Steam Coal and Bituminous Coal. Confronted with conflicting views/opinions of different benches, this Tribunal vide order dt.07.09.2015 and subsequent Order dt.08.6.2016, referred the matter to the Larger Bench for resolving the issues. The reference in present appeals along with the appeals pending before different benches viz. Chennai, Mumbai, Hyderabad, Bangalore and Kolkata were taken up by the Larger Bench constituted at Chennai. After hearing all concerned, the Larger Bench passed Order dt.16.01.2017 and as per observation at Para 8 of the said order, the Registry at Ahmedabad listed the appeals after due notice to the appellants.
2. The learned Advocate/Consultant representing the appellants submitted that even though the orders passed by the Larger Bench have been placed on CESTAT website and also reported, however, the appellants were not served with the certified copy of the said order. Further, he has submitted that on disposal of the present appeals, wherever the stay applications have been passed by directing pre-deposit, the Revenue will proceed to enforce the demand for the balance amount pursuant to the present Order. Also, he has submitted that along with the major issue of classification of steam coal and bituminous coal, the other ancillary issues, assailing the impugned order, have been raised in the respective appeals and would remain undisposed.
3. The learned Advocate referring to the judgment of Hon'ble Allahabad High Court in the case of Xerox India Ltd Vs CCE Meerut-2017 (349) ELT 532 (All.), submitted that mere pendency of the appeal before the Apex Court cannot be the ground for not deciding the issue by this Tribunal.
4. The Ld. AR for the Revenue submitted that since the Larger Bench has issued specific direction for disposal of the appeals, therefore, the present appeals be decided in the light of the observations recorded by the Larger Bench in the Order dt.16.01.2017 as the said judgment is binding on this Tribunal. It is his contention that the judgment of Larger Bench was dictated in the open court and all advocates were present while the order was being dictated. The orders have been placed on CESTAT website for a long period and there cannot be any grievance for non-receipt of the certified copy of the Larger Bench order as no request by the respective Advocates/Appellants has been made after the Larger Bench order was pronounced and placed on CESTAT website. The Ld. AR read out the order of the Larger Bench dt.16.01.2017 and submitted that after the appeals are disposed of, the Revenue would be free to recover the outstanding amount in each case. He submits that more than 350 cases are pending before different Benches of Tribunal in India and Revenue locked up in these appeals is running to several crores of rupees. Therefore, the Revenue should be allowed to recover the amounts.
5. Heard the Advocates for the parties and the Revenue. Needless to emphasize that the issue raised in these appeals, inter alia, involve a substantial question of law of classification of Steam Coal and Bituminous Coal and referred to the Larger Bench as conflicting opinions have been expressed by various benches of the Tribunal. When the matter was heard before the Larger Bench, taking note of the fact that the issue has already been taken up and pending before the Hon'ble Supreme Court, the Larger Bench relegated these Appeals to the respective Benches to dispose the same in the light of the observations of Larger Bench in its order dt.16.01.2017. For better appreciation, the order of the Larger Bench dt.16.01.2017 is reproduced below:-
All the references have arisen from the conflicting orders passed by different benches of CESTAT.
2. Briefly, the facts are that all the appellants-assesses, during the relevant period were importing coal from different countries, especially from Indonesia classifying such goods under chapter sub-headig 27011920. The coal so imported were claimed to be steam coal which never attracted any duty during the material period. In other words, it attracted NIL rate of duty. But other coal i.e. Bituminous coal falling under chaper sub-heading 27011200 attracted 5% duty as per Notification No.12/2012-Cus, dt.17.03.2012. But, the said notification was amended from time to time.
3. Regarding the classification of the coal, different benches of CESTAT have taken different views at the instance of the parties. The Chennai and Ahmedabad Benches prima facie considered these are the steam coal attracting no duty. This was followed by Mumbai Bench. On the other hand, Bangalore Bench of the CESTAT considered it as Bituminous coal attracting duty to 5%.
4. The CESTAT Chennai Bench has also exempted pre-deposit condition. The same was challenged by the Department before the Hon'ble High Court who declined to intervene in the matter and the matter was restored to CESTAT with a direction to dispose of the reference applications expeditiously.
5. On the other hand, against the decision of the Bangalore Bench, where the coal was considered as Bituminous coal and duty was attracted @ 5% was challenged by M/s Maruti Ispat & Energy Pvt. Ltd. & Others before Hon'ble Supreme Court in Civil Appeal No.28937/2014 and 9725/2014. During the course of arguments, it was informed that the matter is subjudice before the Hon'ble Supreme Court.
6. In view of the above, liberty is granted to the applicants/assesses to come again before this Tribunal after having the final verdict from the Apex Court, within the prescribed time, if advised so. Certain inadvertent omissions in the fair copy of the Interim Order No.4 to 96/2017 dt.16.01.2017 were noticed. Taking suo moto cognizance of the same following amendment to that order is made to read as under and this shall form an integral part of the said order to be read in conjunction thereto:
(1) Interim Order No.4 to 96/2017 dt.16.01.2017 shall be read as Final Order. The same shall be renumbered accordingly.
(2) After Para 6 of the above order, following orders shall appear (inserted) as Para 7 thereunder:
7. All the intervention applications are disposed with the direction given in Para 6 of this order as stated herein before. (3) After Para 7, Para 8 will appear (inserted) as under:
8. Registry is directed to place all the appeals as appearing in the cause list before the respective Benches for appropriate order and dispose of the appeals in the light of the directions made in the order of the Larger Bench.
6. On a plain reading of the said order, it is clear that the registry was directed to place the appeals before the respective benches for appropriate order and disposal of the appeals in the light of the direction/observation made in the order of the Larger Bench. The direction/observation of the Larger Bench could be located at Para 6 of the order, wherein liberty is granted to all the assesses to come again before this Tribunal after receiving the final verdict from the Apex Court within prescribed time, if advised so. Thus, the present appeals are disposed of with liberty to the appellants to approach this Tribunal after final verdict on the issue of classification of Steam Coal and Bituminous Coal from the Hon'ble Apex Court.
7. At this stage, it is worth mentioning that approximately 350 appeals on the said issue filed before different benches and large number of the same are before this bench. Since the final disposal of the appeals rests on the judgment of the Honble Apex Court on the classification issue of Steam Coal and Bituminous Coal, therefore, we are not in agreement with the argument of the learned Special Counsel for the Revenue that the Revenue would be free to enforce the demands during the intervening period i.e. after the present order is passed and till the final verdict of Hon'ble Supreme Court delivered. Similarly, the appellants also cannot have the right to claim refund during the same period, if any, accrues to them. Therefore, in the interest of justice, we are of the view that the status quo should be maintained i.e. no recovery nor any refund of the amounts involved in these appeals would be processed during this period. Further, we do not see substance in the apprehension of the learned Advocates for the respective Appellants, that with the judgment on the issue of classification by the Supreme Court, all other ancillary issues would remain undecided by this Tribunal. Needless to mention that even though the major issue involved is classification of steam coal and bituminous coal, if any ancillary issues are raised, the same also would be addressed after the verdict of the Honble Supreme Court on the main issue. Both sides are at liberty to approach this Tribunal after the verdict of the Hon'ble Apex Court. Appeals disposed of as above. All connected miscellaneous applications and COs also disposed.
(Dictated and pronounced in the open court)
(Mr. Raju) (Dr. D.M. Misra)
Member (Technical) Member (Judicial)
Neha
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C/12616,12686,12685,13526,13528,13889,13959,13960/2014-DB