Customs, Excise and Gold Tribunal - Mumbai
M/S. Presto Plastic Recycling vs Commissioner Of Customs, Kandla on 12 June, 2001
ORDER G.N. Srinivasan, Member (J)
1. In this matter an application for stay has been filed requiring waiver of redeposit of duty of Rs. 76,69,185/- being the Customs duty demanded. By the order dt. 9,10.2000 Commissioner of Customs Kandla has confirmed the duty at the aforesaid amount for violation of Notification No.133/94 Cus dt. 22.6.94 and Notification No. 126/94 CE dt. 2.9.94. The appeal itself was taken up for disposal after waiving redeposit with consent of both sides as appeal lies in a narrow compass.
2. The appellant is a unit working under Kandla Free Trade Zone. It was availing exemption under Notification No. 133/94 Cus dt. 22.6.94. It imported Plastic Scrap. They were thinking of using the said raw material for the purpose of manufacturing granules. They imported machinery worth Rs.32.59,910/- and also raw material worth Rs. 70,15,879/- they stored above machinery as well as raw material along with finished goods worth Rs.4,60,175/- in the unit. It would appear that there was a fire on 27.12.98 and it has been reported to have destroyed the above raw material, capital gods and the finished goods. The department issue a show causes notice dt. 17.6.99 calling upon the appellants to pay the duty in respect of the above three materials namely capital gods in the form of machinery, raw material and the finished goods. The show cause notice also mentioned violation not only of the Customs Notification No. 133/94 Cus dt. 133/94 Cus dt. 22.6.94 as also violation of Central Excise Notification O. 126/94 dt. 2.9.94. The notice does not state as to which of the provisions of particular section of the Central excised Act has been violated. A reply to the show cause notice reply has been filed and referred to in paragraph 5 of the impugned order. In the said paragraph 5 of the impugned order at sub-paragraph (iii). It has been stated by the appellants that they had claimed benefit of the said notification namely Notification No. 126/94CE and Notification No. 133/94Cus issued under the Customs Act, and they have been permitted to import into India duty free articles specified under the subject to the conditions specified therein. They did not refer to specifically a benefit of Clause (7) of Notification No. 133/94 issued under the Customs Act. The Police report in respect of the fire is at page 31 the development Commissioner has given the certificate dt. 21.9.98 value stated as follows:
"Almost all the plastic scraps lying in the factory premises of M/s. Presto Plastic Recycling was brunt in the fire. The entire roof structure of Shed No. 315 have been destroyed by fire and fallen down. Semi processed and finished products were stacked in the Shed also burnt completely and destroyed. The Fire also dagged doors, windows, ventilators, rolling shutters, Machinery and its accessories, fitted in the Shed No. 314 & 315."
In the above paragraphs it has been stated that fire also damaged doors, windows, ventilators, rolling shutters machinery and its accessories. In the impugned order the Commissioner has held that there has been a violation of Notification No. 133/94 Cus dt. 22.6.94 and Central Excise Notification No. 126/94 dt. 2.9.94 and confirmed the duty. He did not impose any penalty under section 112 of the Customs Act. Order does not say anything about imposition of penalty and waiver of penalty under Central Excise Act. The duty of Rs. 67, 69, 185/- has been confirmed which is claimed under Customs Act and Central Excise Act as is revealing in Paragraph 1. Hence the present appeal.
3. The learned Counsel for the appellant Shri MH Patil arguing the appeal states that the Commissioner has not gone into in detail about the applicability of clause (7) of the Notification No. 133/94 Cus dt.22.6.94 to the facts of the case. Our reaction is that in their reply to show cause notice as mentioned in paragraph 5 of the impugned order, there is no specific plea of the appellants inviting the attention of the Commissioner to the said clause (7). Hence it may not be possible for the adjudicating authority to discuss this aspect of the mater in the impugned order. It is true that clause (7) is an important provisions as which has to be dealt with by the adjudicating authority in such types of cases. Since it has been raised before us we are remanding the matter back to the adjudicating authority who has to see the effect of the report of the report of the Commissioner which is at pages 28 & 29 and the particular portion of the report has been highlighted by us. We only observe that the report of the Development Commissioner of Kandla Free Trade Zone does not specifically mention about the destruction of the machinery what is effect of the damage and what is the effect of the reports given by any other agency which may have bearing of the facts of the case has to be looked into by the adjudicating authority. One more point needs mentioned the Ld DR has invited our attention to clause 3 (b) of Notification No. 126/94 issued under Central Excise Act. What is the effect of the same to the facts of this case has also been looked into by the adjudicating authority. We agree with the contention raised by the Ld. DR. The words contained in paragraph 3(b) of the Central Excise Notification are not found in the Customs Notification what is the effect of the same to the facts of the case has to be looked into. We therefore set aside the impugned order and remand the matter back to adjudicating authority who will re-determine the whole issue and pass the order afresh, after following the principles of natural justice and in accordance with law. Parties are at liberty to proceed before the authority any evidence.
4. Stay petition also stands disposed of.
(Pronounced in Court)