Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Import), ... vs M/S Tata Infotech Ltd on 12 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. II
Appeal No. C/368/04
[Arising out of Order-in-Appeal No. 286/2003- APTE (Airport) dated 24.09.2003 passed by the Commissioner of Customs (Appeals), Airport, Mumbai].
For approval and signature:
Honble Shri P.S. Pruthi, Member (Technical)
Honble Shri Ramesh Nair, Member (Judicial)
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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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Commissioner of Customs (Import), Mumbai
Appellant
Vs.
M/s Tata Infotech Ltd.
Respondent
Appearance:
Mr. D. K. Sinha, A. C. (AR)
for Appellant
Amey Nargolkar, Advocate
for Respondent
CORAM:
Honble Shri P.S. Pruthi, Member (Technical)
Honble Shri Ramesh Nair, Member (Judicial)
Date of Hearing: 12.08.2015
Date of Decision: .2015
ORDER NO.
Per : Ramesh Nair
The Appeal is directed against Order-in-Appeal No. 286/2003 -APTE (Airport) dated 24.09.2003 passed by the Commissioner of Customs (Appeals), Airport, Mumbai, wherein the Ld. Commissioner allowed the appeal of the appellant by setting aside the Order-in-Original.
2. The issue involved in the present case is that whether the appellant is entitle for the benefit of Notification No. 80/70-Cus dated 24.08.1970. The revenue has contended that the goods imported are computer parts by the appellants company M/s Tata Infotech Ltd. whereas the Notification is applicable to the goods imported as private personal property of the importer which means when only individual as his private personal property person imports goods then only the said exemption is available. In the present case the goods are not imported by an individual whereas it is imported by a company, therefore it cannot be said that the goods are imported as private personal property of the importer.
3. The adjudicating authority by Order-in-Original dated 31.01.2003 denied the benefit of Notification No. 80/70 dated 29.08.1970 and ordered to release the goods on payment of duty. Being aggrieved, the appellant filed appeal before the Commissioner (Appeals), who allowed the appeal by setting aside the Order-in-Original. Therefore, the revenue is before us.
4. Shri D. K. Sinha, Ld. A.C. (A R) appearing on the behalf of the Revenue submits that on the very same issue though Honble Bombay High Court in the case of M/s Echjay Industries Pvt. Ltd. Vs. Union of India 1994 (52) E.C.R. 366 (Bom.) extended the benefit of Notification, but in the subsequent judgment, the same Honble Bombay High Court in the case of Birla Erickson (Tools) Limited Vs. Union of India passed a judgment wherein it was held that notification is not eligible to goods which is for commercial purpose. It is his submission that as per the Birla Erickson judgment, the benefit of the notification is not eligible to the respondent. He refers to CBEC Circular No. 1/2005-CUS dated 01.11.2005 para no. VIII, wherein the Board has clarified that in view of latest order of the Bombay High Court in the case of Birla Erickson (supra) benefit of Notification No. 80/70 dated 29.08.1970 could not be extended to import to warranty replacement by companies or commercial organization.
5. On the other hand, Shri Amey Nargolkar, Ld. Counsel for the respondent submits that the judgment in the case of Echjay Industries Pvt. Ltd. (supra), the Honble High Court has passed very detailed order, discussing entire facts of the case and by passing a reasoned order, decided that the benefit of notification is eligible even to the commercial organization also. However, the judgment passed by Honble Bombay High Court in the case of Birla Erickson (supra), the Honble Bombay High Court has not seen the light of judgment already passed in the case of Echjay Industries Pvt. Ltd. Since the Honble High Court has not considered the Echjay Industries judgment as the same was not brought to the notice to Honble Bench, the judgment of Echjay Industries P. Ltd. will prevail. Therefore, Ld. Commissioner following the said principles, allowed the appeal of the appellant which does not suffer with any infirmity.
6. We have carefully considered the submission made by both the sides. We find that on the issue involved, there are two judgments on the same issue delivered by the Honble Bombay High Court, first in the case of Echjay Industries Pvt. Ltd. (supra) and second is Birla Erickson (Tools) Ltd. (supra). We observed that in the case of Echjay Industries P. Ltd., the Honble High Court has passed very detailed and reasonable order discussing the facts and law points whereas in the case of Birla Erickson, the Honble High Court has passed a precise order. The question is that when two conflicting judgments of same High Court are available, then which judgment has to be followed. In the case of Birla Erickson judgment, it is observed that the earlier judgment of Echjay Industries was neither before the Honble High Court nor the same was considered, therefore the first order passed by the Honble High Court in the case of Echjay Industries shall be followed. In this regard, it is a settled law that when a reasoned order passed by a coordinate bench was not referred considered in the subsequent judgment on the same legal issue and the said judgment is contrary to the first, he subsequent judgment shall be a per in-curium judgment and the same is not finding on the lower court. In such a situation, the subordinate courts are free to follow the earlier judgment if it feels applicable in the facts and circumstances of the case in hand.
7. Since in the second order of the Honble High Court in Birla Erickson case, the judgment of Echjay Industries was not considered, e the Birla Erickson judgment is per in-curium. Therefore, the Birla Erickson judgment is not binding. The Ld. Counsels reliance on the judgment of Siddharam Sallingppa Vs. State of Maharashtra & Others of Honble Supreme Court MANU/SC/1021/2010 A.I.R. 2011 SC 312 supports their case.
In view of the above legal position, we find that the Commissioner (Appeals) order in just and illegal which deserves to be maintained, therefore, we upheld the impugned order and dismiss the revenues appeal.
(Order pronounced in Court on ...............)
(P.S. Pruthi) (Ramesh Nair)
Member (Technical) Member (Judicial)
Saifi
5
Appeal No. C/368/04