Custom, Excise & Service Tax Tribunal
Ssmp Industries Limited vs Delhi I on 24 August, 2018
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IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi - 110 066.
Date of Hearing: 23.5.2018
Date of Pronouncement: 24.8.2018
Appeal No. E/51980 & 51982/2017-SM
(Arising out of Order-in-Appeal No. 211-212/CI/DLH/2017 dated 22.9.2015
passed by the Commissioner (Appeals), Customs & Central Excise & Goods and
Service Tax, New Delhi)
M/s SSMP Industries Limited Appellant
Shri Surendra Kumar
Vs.
CCE, Delhi Respondent
Appearance Shri Prabhat Kumar, Advocate - for the appellant Shri P. Junega, AR - for the respondent CORAM: Hon'ble Mr. Bijay Kumar, Member (Technical) Final Order No. 52850-52851/2018 Per Bijay Kumar :
The present appeals have been filed against the impugned order vide which the ld. Commissioner (Appeals) has upheld the order passed by the lower appellate authority rejecting the refund claim filed by the appellant.
2. The issue involved in this case is that the appellant has exported the consignment of Mango juice to Nepal without following the prescribed procedure as contained in the Notification No. 2 19/2004 dated 6.9.2004. The appellant has exported the goods to Nepal without payment of Central Excise duty. Although the appellant failed to follow the export procedure as mandated in the Notification No. 42/2001 dated 26.6.2001 and Notification No. 29/2004 dated 6.9.2004. The period involved in this case is from Feb. 2014 to October 2014 involving Central Excise duty to the extent of Rs.19,68,035/- by way of non-payment of Central Excise duty.
2. The ld. Advocate on behalf of the appellant has agreed that it was that the appellant had not followed the procedure prescribed under the aforesaid notification which was required to be followed in case of goods exported to Nepal. However, he states that there is no dispute about the export being made to the Nepal in view of the fact that the same has been confirmed by the Nepalese Custom and the payment has been received through the banking channel. Therefore considering the violation of notification is required to be treated as procedural. The substantive benefit to the appellant is not required to be denied in this case. Accordingly, he prayed for allowing of the appeal filed by the appellant.
3. On the other hand, the ld. DR has stated that the appellant has not fulfilled procedure prescribed under the aforesaid notifications by exporting the goods to the Nepal. The export of the goods to 3 Nepal is required to be done following the special procedure that has been prescribed in the aforesaid notification. Having not done so, the benefit claimed by the appellant is not required to be accepted by this Hon'ble Tribunal. He relied upon the decision of CC Import, Mumbai Vs. Dilip Kumar & Company & Others, CA No. 3327 of 2007 decided on 31st July, 2018, wherein Hon'ble Supreme Court has stated that the conditions imposed by the notification is to be applied strictly and in case of any infraction there of the same should be in favour of Revenue. Having not followed the conditions of notification the benefit of notification is not required to be extended to the appellant. And thus the appeal filed by the appellant is not sustainable.
4. I have heard the rival contentions and also perused the case record. It is not in dispute that the goods have been exported to the Nepal without following the procedure prescribed under the two aforesaid notifications. The contention of the appellant that this may be treated as a procedural lapse as the export has already been affected to Nepalese importer. This is undisputed the fact that the condition of notification has not been complied with and thus following the supreme Court's decision (supra), I do not intend to interfere with the order passed by the lower appellate authority and therefore reject the appeal.
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5. Having considered the main appeal against the appellant, I also do not interfere with the appellate order in case of Shri Surendra Kumar also. Accordingly, the same is also dismissed.
(Pronounced in Court on 24.8.2018) (Bijay Kumar) Member (Technical) RM