Custom, Excise & Service Tax Tribunal
M/S. Jindal Drugs Ltd vs Commissioner Of Customs (Export), ... on 26 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.II
APPEAL NO.C/1024/08
(Arising out of Order-in- Original No.89/2008 dtd. 19.06.2008 passed by the Commissioner of Customs (Export), Nhava Sheva )
For approval and signature:
Honble Mr Ashok Jindal, Member(Judicial)
Honble Mr.S.K.Gaule, Member(Technical)
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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 :
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?
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M/s. Jindal Drugs Ltd.
:
Appellants
VS
Commissioner of Customs (Export), Nhava Sheva
Respondent
Appearance
Shri Prakash Shah, Advocate for Appellants
Shri K.S.Mishra, Addl.Commr. (A.R.) for Respondent
CORAM:
Mr. Ashok Jindal, Member(Judicial)
Mr. S.K.Gaule, Member(Technical)
Date of hearing: 25/06/2013
Date of decision 26/09/2013
ORDER NO.
Per : Ashok Jindal
Heard both sides. The short issue involved in the matter is whether the appellants are required to pay cess on menthol crystals or not.
2. The facts of the case are that the appellants are engaged in the manufacture of menthol/menthol crystals and classified the product under Customs Tariff Heading 2906 11 00. The contention of the Revenue is that as per Spices Cess Act, 1986 the appellants are required to pay Export Cess @ 0.50% ad valorem on exports of Mint in any form including menthol crystals and other menthols. Therefore, a show-cause notice was issued and demand of cess was confirmed. Aggrieved by the said order, the appellants are before us.
3. It is the contention of the appellants that as per Spices Board Act, levy of cess is on the spices and as per schedule at sr.no.20 Mint is mentioned but as per Chapter 9 of the Customs Tariff Heading Mint is specifically excluded from spices and same is independently classified under CTH 29. Therefore, as the goods are not classifiable under Chapter 9 of CTH as spices, they are not liable to pay cess.
4. On the other hand, the ld.Addl.Commissioner (A.R) for the department strongly opposed the contention of the ld.Counsel and submits that as per Spices Board Act, Section 2 of the said Act defines spices means the spices specified in the Schedule and as per the Schedule at sr.no.20 Mint is mentioned and there is a clarification below that the spices in any form including curry powders, spice oil, oleoresins and other mixtures where spice content is predominant. It is further submitted that as per the Spices Cess Act, 1986, 0.50% cess was leviable at spices under the Customs Act, 1962 during the relevant time when the export took place. Therefore, it is clear that the appellants are manufacturing menthol crystals which are predominantly mint only. Therefore, they are liable to pay cess.
5. Considering the submissions made by both sides., we are of the opinion that as per the definition under Spices Board Act, 1986, Section 2 (n) spices including mint in any form including curry powders, spice oil, oleoresins and other mixtures where spice content is predominant and as per the Spices Cess Act, 1986, the assessee is liable to pay cess. The definition of spice clearly covers mint as spice and cess is payable as per the Spices Cess Act, 1986. Therefore, it is irrelevant whether Chapter 9 of Customs Tariff Heading 1975 excludes mint from spices and separate Chapter 29 has been created for classification of menthol crystals/menthol, a separate item from spices under the Customs Tariff Heading 1988. Therefore, we are of the confirmed view that the appellants are liable to pay cess as per Spices Cess Act, 1986 and as argued by the ld.counsel for the appellants that Cess Laws (Repealing and Amending) Act, 2006 has repealed the Spices Cess Act, 1986 but the same has no retrospective applicability. In these terms, we uphold the impugned order and dismiss the appeal which deserves no merit.
6. Appeal is dismissed.
(Pronounced in court on 26/09/13) S.K.Gaule Member(Technical) Ashok Jindal Member(Judicial) Pv 4