Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Export) ... vs M/S. Ashish & Co on 4 September, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/1215/2004-Mum (Arising out of Order-in-Original No. 90/2003/CAC/CC/SK dt. 31.10.2003 passed by the Commissioner of Customs (EP) Mumbai ) For approval and signature: Honble Mr. P.S.Pruthi, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see : No
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
=============================================================
Commissioner of Customs (Export) Mumbai
:
Appellant
VS
M/s. Ashish & Co.
:
Respondent
Appearance
Shri Ahibaran, Addl. Commr. (A.R.) for Appellant
Shri Anil Balani, Advocate for respondent
CORAM:
Mr. P.S.Pruthi, Member (Technical)
Mr. Ramesh Nair, Member (Judicial)
Date of hearing : 04/09/2015
Date of decision : 04/09/2015
ORDER NO.
Per : P.S. Pruthi
This is an appeal against the Order passed by adjudicating authority dt. 31.10.2003. In this case a show cause notice was issued to the transferee of an advance license seeking to deny the benefit of duty exemption on the basis that the burden of proving that modvat credit has not been availed in terms of condition Notification No. 203/92-Cus dt. 19.05.1992 has not been discharged. The adjudicating authority held that this burden cannot be cast on the transferee once the license has been endorsed as transferable by the licensing authority.
2. Heard both sides.
3. The Ld. AR appeared on behalf of Revenue submits a copy of the Honble Apex Court judgment in the case of Tata Irion and Steel Co. Ltd. as well as the judgment of Honble High Court of Punjab & Haryana in the case of Friends Trading Co. Vs. Union of India 2010 (254) E.L.T. 652 (P & H) and Commissioner of Customs, Mumbai Vs. Special Steels Ltd. 2004 (163) E.L.T. 242 (Tri.-Mumbai). The Ld. AR also states that the burden is on the transferee to prove that the condition of non-availment of modvat credit is satisfied which has not been done in this case. He further prays that the matter be remanded to the adjudicating authority for verification of availment of modvat credit.
4. Ld. Counsel appearing for the respondents states that the case relates to Bill of Entries of 1993. As per the adjudication Order, the holders of the two Licenses in question had vide their letters intimated that modvat had not been availed at the input stage and the DGFT had endorsed the transferability of license. He also submits that the ground of appeal relying on the case of Commissioner of Customs (Imports), Vs. Hico Enterprises 2008 (228) ELT 161 (S.C.) does not hold good because the matter was finally decided by the Larger Bench in favour of the transferees and the said order was affirmed by the Supreme Court.
5. Considered the submissions of both sides. It appears from the records that no verification has been done by the department as to whether the modvat credit was availed or not by the holder of the license. The show cause notice is vague in that it only states that input stage credit appears to have been taken. It does not stand to reason why the department could not have verified and this simple fact. In the circumstances, we are not inclined to remand the case to the adjudicating authority in respect of imports which were made almost 20 years back as no purpose would be served.
5.1. We also find that the main ground of appeal, that is reliance on the case of Hico Enterprises does not sustain as the matter was settled in favour of the transferees in that case. The judgments cited in the case of Special Steels Ltd., Friends Trading Co. and Tata Iron and Steel Co. Ltd. were considered by us in the case of Nidhi Textile vide Tribunal Order No. A/2919-2994/15/CB dt/ 31/8/2015. This judgment was passed after considering all the judicials pronouncements. In the present case before us we also find that the facts of Tata Iron & Steel Co. Ltd. case are at variance from the facts of the present case. In the Tata Iron & Steel Co. Ltd. case it is clear from the judgment that there was deliberate suppression of the fact that modvat credit had been availed and, therefore, the Honble Apex Court held that the extended period of demand would be applicable even to the transferee of the license. However in the present case as already noted above, no evidences are forthcoming from the records that there was availment of modvat credit. In the circumstances there is no merit in the grounds of appeal. The impugned order is upheld and appeal is rejected.
(Dictated in court) (Ramesh Nair) Member (Judicial) (P.S.Pruthi) Member (Technical) SM.
4Appeal No. C/1215/2004-Mum