Custom, Excise & Service Tax Tribunal
Agarwal Coal Corporation Pvt Ltd vs Commissioner Of Customs And Service Tax ... on 14 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21336-21338 / 2014 Application(s) Involved: C/Stay/21401/2014, C/Stay/22150/2014, C/Stay/22187/2014 in C/21244/2014-DB, C/21951/2014-DB, C/21984/2014-DB Appeal(s) Involved: C/21244/2014-DB, C/21951/2014-DB, C/21984/2014-DB [Arising out of 08-2013 dated 31/12/2013 passed by Commissioner of CUSTOMS , VISAKHAPATNAM ] [Arising out of VIZ-CUSTM-000-COM-018-13-14 dated 26/02/2014 passed by Commissioner of CUSTOMS , VISAKHAPATNAM ] [Arising out of 06-2014 dated 31/01/2014 passed by Commissioner of CUSTOMS , MANGALORE ] Agarwal Coal Corporation Pvt Ltd 28-11-18, 3rd Floor, Surya Bgh VISHAKHAPATNAM - 530020 AP Appellant(s) Topworth Steels & Power Pvt Ltd Borai Indl, Growth Centre, Behind Heg Ltd RASMADA, DURG - 491001 CHHATTISGARH Appellant(s) Swastik Coal Corporation Pvt Ltd Wahid Complex,1st Floor, Anantpur Road, BELLARY - 583101 KARNATAKA Appellant(s) Versus Commissioner of Customs And Service Tax Visakhapatnam-cus CENTRAL EXCISE BUILDING... PORT AREA, VISAKHAPATNAM, - 530035 ANDHRA PRADESH Respondent(s)
Commissioner of Customs Mangalore-cus NEW CUSTOMS HOUSE PANAMBUR MANGALORE - 575010 KARNATAKA Respondent(s) Appearance:
Shri Alok Barthwal,Adv 2i5/A BASNI TRADE CENTER, 581/5,M.G.ROAD, INDORE, -
MADHYA PRADESH For the Appellant Dr. A.K. Nigam, Addl. Commissioner(AR) & Shri N. Jagdish, Superintendent(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 14/08/2014 Date of Decision: 14/08/2014 Order Per : B.S.V.MURTHY In all these cases, the issue involved is classification of steam coal (as declared) imported by the appellants. In all the three cases, issue involved is same. Therefore all the appeals are taken together and a common order is being passed.
2. At the outset, the learned counsel was informed that this Tribunal has already decided the issue of classification finally in the case of Coastal Energy Pvt. Ltd. [Final Order No.20998-21002/2014 dt. 20/06/2014]. Nevertheless, the learned counsel presented detailed arguments. We consider it appropriate that the submissions have to be mentioned briefly.
3.1. The first submission was that the steam coal was used as a fuel and this was the purpose for which exemption was granted and there is no dispute about the functional use and by classifying the steam coal imported as bituminous coal, the very purpose of the notification has been defeated. It was also submitted that trade parlance test is relevant in this case and when trade parlance test is applied, there is no dispute at all that the coal imported by the appellant is called steam coal. He relies on the decision in the case of Sonic Electrochem Ltd. Vs. CCE, Indore [2004(168) ELT 486 (Tri. Del.)].
3.2. The exemption is not based on trade parlance. Before going to the exemption notification, the classification of the goods have to be made and this aspect has already been dealt with in our decision.
4. The next submission was that if a decision is taken that the coal imported by the appellant has to be treated as bituminous coal, the entry related to steam coal in the tariff become redundant. We find that this issue has also been dealt with in our decision in great detail and no new points were presented.
5. It was also submitted that the purpose of imposition of additional customs duty is to maintain parity between the importers and the local manufacturers. In this case, it was submitted that by levying additional customs duty on the traders, the parity between the local manufacturers and the traders cannot be maintained. It was submitted that the traders cannot pass on the additional duty of customs and as a result, they will be handicapped. As far as party purpose is concerned, the value of the imported goods + customs duty is taken as ex-duty value for the purpose of comparison with domestic manufacturers and therefore levy of additional customs duty, in our opinion, cannot affect the traders adversely.
6. Another submission was that it is a revenue neutral situation since the traders can pass on the benefit of additional duty of customs to the manufacturers and therefore there was no need for collecting the duty. On this issue also, we have already taken a view that demand for extended period cannot be sustained and in the case of demand for normal period, the question of revenue neutrality is not relevant. What is relevant is the correctness of the tax paid and the correctness of assessment on which we have already taken a view.
7. Since all the submissions made by the learned counsel have been dealt with already in our order and there is nothing else left to be considered and if the appellants are aggrieved on the basis of decision in the case of Costal Energy Pvt. Ltd. (supra), they can file an appeal, we consider that the matter should be finally decided by this Tribunal even though only stay applications are listed. Even though the learned counsel had initially submitted that only stay may be decided subsequently, he agreed that a final order can be passed.
8. In view of the above observations, the reclassification of steam coal as bituminous coal and consequently duty demand within the normal period is upheld and appellants are required to pay the duty or balance of duty, if not paid, with interest. As held in the case of Coastal Energy Pvt. Ltd. (supra), the confiscation of the goods, fine in lieu of confiscation of goods, if any, imposed and penalty, if any, imposed are set aside. All the appeals are disposed of in above terms.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja..
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