Customs, Excise and Gold Tribunal - Mumbai
Cc vs G.M. Mittal Stainless Steel Ltd. on 26 August, 1998
Equivalent citations: 1999(80)ECR585(TRI.-MUMBAI)
ORDER P.C. Jain, Member (T)
1. Briefly stated the facts of this case are as follows:
2. The respondents herein imported certain goods namely ferro nickel ingots. The bill of entry was filed for the same on 14 February, 1984. The goods were assessed and cleared after payment of duty. It appears that within six months, a less charge demand was issued by the Customs Authorities indicating that there has been short payment of customs duty to the tune of Rs. 10,675/-. Before confirmation the same, the respondents requested for personal hearing. It was fixed for 13.9.1993 which was attended by the respondent who requested for more time which was not allowed by the Adjudicating Authority. The Adjudicating Authority confirmed the aforesaid demand.
3. In appeal before the Lower Appellate Authority, the respondents, inter alia, contended that they had filed a Bill of Entry for home consumption on 14th Feb., 1984; the rate of duty in force as on 14th Feb., 1988 would be applicable in their case. Therefore, there was no justification for demanding Special Excise Duty which was made effective only from 1st March, 1984. It was also contended that the show cause notice has been vague in-as-much-as it did not mention the duty which was proposed to be demanded from the respondents. It only stated customs duty. Therefore, it was contended that the confirmation of demand of Special Excise Duty was beyond the allegation in the show cause notice, since, it mentioned only customs duty and no details were given as to which customs duty was applicable to in their case.
4. The Lower Appellate Authority after considering the facts and circumstances of the case including the pleas of the respondent held that the order-in-original did not mention the date of importation or the relevant date for application of special duty which had been imposed in the Finance Bill of 1984. In the absence of clear provisions for applicability of the new impost and in view of the denial of natural justice, the lower Authority set aside the order-in-original. Hence this appeal before us.
5. Ld. SDR Shri A.K. Agarwal submitted that the aforesaids findings of the lower authority are not correct. In as-much-as the date of filing of Bill of Entry was mentioned in the order-in-original. The relevant date for application of special excise duty is what was imposed in the Finance Bill 1983 and not in the Finance Bill of 1984 as mentioned in the impugned order. It has, therefore, been submitted by the Ld. SDR that the impugned order be set aside since it is based on incorrect facts and facts which have not been taken into account although clearly mentioned in the order-in-original.
6. We have carefully considered the pleas advanced by Ld. SDR. We have also gone through the letter dated 20th April, 1998 from the respondents. They have reiterated their earlier plea that the show cause notice is vague since it did not refer to the special excise duty at all. It mentioned only broadly the Customs duty. It has therefore, been urged again in their written submission that the adjudication order had gone beyond the show cause notice and therefore, not duty should be chargeable. The show cause notice itself is liable to be set aside, because, it is vague.
7. We have carefully considered the pleas advanced from both sides we observe that the ground far accepting the appeal of the respondents by the lower appellate authority is not merely the lack of availability of the relevant date for determination of rate of duty but also the breach of natural justice by denying the time asked for by the respondent. In setting aside the impugned order, (order-in-original) lower appellate authority had also taken into account the fact that although the show cause notice had been issued in 1984, the matter was decided only in 1993 i.e. almost after a decade. He, therefore, felt that it was not worth remanding the matter after such a long time for a meagre amount of Repees Ten thousand and odd and also for the reason that the show cause notice was vague as had been contended by the respondent herein before the said authority. We further observe from the grounds of appeal taken in the Revenue's appeal that no explanation has been given as to why the special excise duty (as a part of countervailing duty) was not mentioned in the less charge demand or the. show cause notice issued to the respondents herein. in other words the vagueness of the show cause notice is impliedly accepted by the Revenue. If the show cause notice is vague the order itself gets vitiated. Therefore, it was liable to be set aside. In that view, we do not find any substance in the Revenue's appeal. Consequently, we dismiss the same.
(Pronounced & dictated in the open court).