Customs, Excise and Gold Tribunal - Mumbai
Corru-Carton (India) Pvt. Ltd., Mumbai vs Commissioner Of Customs, Mumbai on 18 June, 2001
ORDER
Gowri Shankar, Member (Technical)
1. The appeal is taken up for disposal with eh consent of both sides, after waiving deposit.
2. The notice issued to the appellant proposed denial of the benefit of the notification 203/92 and consequent recovery of the duty forgone on the goods that the appellant cleared under this notification, on the ground that one of the conditions subject to which the exemption was available, that modvat credit should not have been availed of in the manufacture of the export product, had been contravened.
3. It is the contention of the counsel for the appellant that it did not receive the notice. There is some lack of clarity in this record. Whatever that may be the notice dated 29.1.1999 demanded duty on goods cleared in 1994. it alleged that the importer deliberately suppressed the fact regarding "non-fulfilment of credit under Rule 57A" and alleges that the importer made a wrongful declaration on the export document that modvat credit had not been availed of. Prima facie neither of these charges is sustainable. The import was made by the appellant before us on an import licence transferred to it. The exporter therefore was someone other than the appellant and the appellant could not have made the wrongful declaration in the export document alleged against it. Nor could it deliberately suppress the fact (if that is what it is) that modvat credit has been availed of by the manufacturer. The notice evidently has been issued, as were hundreds of others, in a routine manner without any application of mind and without reference to the facts of the case. Normally, we would have disposed of this appeal on this ground. however, the counsel for the appellant says that the bill of entry shows to be goods to have been provisionally assessed. In that even, it would not be possible for us without knowing the full facts to say that the extended period would not apply. Before determining the validity of the notice, the date on which provisional assessment was finalised, or whether it has been finalised at all, have to be considered. Therefore the applicability of the ratio of the Tribunal's decision in Plastic Chem Industries vs CCE 2000 (120) ELT 775 and other decisions that may be relevant including Goodluck Industries, would have to be considered.
4. We accordingly accept the suggestion of both sides to remand the matter for adjudication afresh. The counsel for the appellant undertakes to file before the Commissioner his submissions within a month from the receipt of this order. The Commissioner shall thereafter adjudicate on the notice in accordance with law.