Custom, Excise & Service Tax Tribunal
Jaiprakash Associates Ltd vs Cc, New Delhi on 20 March, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.2
Date of hearing/Decision: 20.03.2014
C/Misc/61807/2013 in
Appeal No.C/530/2009-Cus
(Arising out of OIO No.35/ACE/JJ/2915 dated 29.5.2009 passed by CC, Air Cargo, New Delhi)
Jaiprakash Associates Ltd. Appellant
Vs.
CC, New Delhi Respondent
Appeal No.C/531/2009-Cus Shri B.V.Raisinghani Appellant Vs. CC, New Delhi Respondent Appeal No.C/532/2009-Cus Shri G.P.Gaur Appellant Vs. CC, New Delhi Respondent Present for the Appellant: Sh.Piyush Kumar, Advocate Present for the Respondent: Shri Jayant Sahay, DR Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr.Manmohan Singh, Technical Member FINAL ORDER No. 51200-51202/2014 PER: D.N.PANDA Miscellaneous application No.61807/2013 has been filed by Revenue praying for early hearing of the appeal. Miscellaneous application is allowed and appeal is disposed today by this order.
2. Learned Counsel precisely says that the dispute centres round the utilization of foreign exchange earning prior to 1.4.2007. Revenue alleges that foreign exchange earning cannot be utilized for EPCG scheme as well as SFIS. But DGFT explains that relevant paragraph of Exim policy does not prohibit such utilization. This is apparent from letter No.01/91/180/473/AM10/PC.3/148 dated 6/14.7.2009 of the DGFT. Accordingly demand was not sustainable. So also he submits that Commissioner of Customs in pursuance to the letter of the DGFT produced before him informed to the Joint Director General of Foreign Trade after passing of adjudication order, that he is unable to resolve the issue further.
3. On the aforesaid background, when the appeal came up to the Tribunal, we noticed that by stay order dated 18.1.2010, that Tribunal has recorded that duty element of Rs.5,34,07,192/- was discharged by the appellant for which there shall be waiver of pre-deposit of balance demand till disposal of the appeals. So also we noticed that these appeals are of 9 years old. When the appellant says that issue can be resolved at the gross root level examining relevant notification/Exim policy and clarification of DGFT, it is not desirable to keep the appeal pending for which it was proposed for remand for re-examination of the issue in view of the submission made by learned Counsel as above.
4. At this stage, Revenue says that the Tribunal is concerned with the interpretation of notification granting incentive scheme to the appellant. Law is well settled that grant of exemption at the cost of public shall be strictly interpreted in view of various judgements by apex court i.e. in the case of Hyderabad Industries Ltd.-1999 (108) ELT 321 (SC), Eagle Flask Industries Ltd.-2004 (171) ELT 296 (SC), M.Ambalal & Co.-2010 (260) ELT 487 (SC) and Favourite Industries-2012 (278) ELT 145 (SC), There is no difference to such proposition.
5. Heard both sides and perused the record. We are of the view that Revenue being protected partially due to payment of duty by the appellant, appeal may be remanded to the learned Commissioner to grant fair opportunity of hearing expeditiously to both sides to putforth their defence to resolve all the dispute considering submissions of both sides. The demand being huge, appellant is directed to make application to the Commissioner within one month of receipt of this order to fix the date of hearing and on the date fixed, the appellant shall make entire submission both on facts and law without seeking adjournments. Commissioner upon hearing, within three months of last date of hearing, shall pass reasoned and speaking order.
6. Since main appeal of M/s.Jaiprakash Associates Ltd. is remanded to the Commissioner (Appeals) as above, connected appeals in Item No.1 of the cause list today are also remanded.
7. While passing this order, we noticed that there was an interim order No.628-630/13-Cu dated 29.10.2013, directing Revenue to file copy of application with the Registry for record for early hearing and Registry was directed to issue notice to the parties to fix the date of hearing. So also Registry was directed to apprise the Honble President for considering formation of bench in view of huge Revenue involved. Prayer of the Revenue was allowed to that extent on mention. But the manner in which Registry is functioning is very clear from the listing of the matter today. When there was direction to the Registry to issue notice in all the cases appearing in the table in the order dated 29.10.2013 which is reproduced below, there was piecemeal approach made by the Registry to escape notice of the bench as to the anxiety expressed by order dated 29.10.13. Registrar is requested to cause enquiry as to the reason why such practice is followed by the Registry which causes jeopardy to the Revenue. Report of the Registrar to be placed on 01.04.2014 alongwith respective explanation from the defaulting officer for consideration and to pass appropriate orders:
S No. Commissionerate Name of Party Appeal No. Stay No. Date Amount Involved (in Crore) 1 Air Cargo Export Jai Prakash Associate C/530-532/09 C/6-8/10 18.1.10 6.47 2 Air Cargo Export Clutch Auto Ltd.
C/57508/13 3.74 3 Import and General FM Construction C/82/10 124-125/10 27.09.10 7.04 4 Import and General EDAG Technologies India Pvt.Ltd.
C/614/10 ST/S/2834/12 09.12.11 5.30 5 Import and General Deep Exports C/424/09 180/09 03.08.09 4.76 6 ICD, Tughlakbad Hem Chand Gupta & Others C/46-49/09 C/47-50/11 01.02.11 32.30 7 ICD, Tughlakbad Shree Polymer C/499/11 C/S/139-141/12 12.04.12 4.26 8 ICD, Tughlakbad Bhatwati International C/154-156 C/157-159/06 4.69 9 ICD, Tughlakbad Flower Vally Marketing Pvt.Ltd.
C/307/11 10.56 10 ICD, Tughlakbad Sundram Exports Pvt.Ltd.
C/04/07 &
C/151-159/10
1.04
(Dictated & pronounced in the open court)
(MANMOHAN SINGH) (D.N.PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
Mk
5
Appeal No.C/Misc/61807/13/-Cus
C/530-532/2009