Custom, Excise & Service Tax Tribunal
) M/S. Jindal Saw Ltd vs ) Commissioner Of Customs (Export), ... on 9 September, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
1) Appeals Nos. C/159 to 165/09
(Arising out Order-in-Appeal No. 354 to 360/2008/MCH/AC/ Export/2008 dated 31.12.2008 passed by the Commissioner of Customs (Appeals), Mumbai)
2) Appeal No. C/1101/09
(Arising out Order-in-Appeal No. 255/2009/MCH/AC/Export/09 dated 15.9.2009 passed by the Commissioner of Customs (Appeals), Mumbai)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
1) M/s. Jindal Saw Ltd.
2) Commissioner of Customs (Export), Mumbai
Appellant
Vs.
1) Commissioner of Customs (Export), Mumbai
2) M/s. Jindal Saw Ltd.
Respondent
Appearance:
Ms. Aparna H., Advocate for the appellant no. 1 & respondent no. 2 Shri P.K. Agarwal, Jt.CDR & Shri Sanjay Karla, JDR for the appellant no. 2, & respondent no. 1 CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 09.09.2011 Date of decision : 09.09.2011 O R D E R No:..
Per: Mr. P.R. Chandrasekharan, Member (Technical) There are seven appeals filed by the appellant Jindal Saw Ltd., and one appeal filed by the Commissioner of Customs, Export Promotion, Mumbai-I. As all these appeals relate to the same issue, they are taken up together for consideration and disposal.
2. Briefly stated the facts of the case are as follows. M/s Jindal Saw filed seven shipping bills for export of alloy steel seamless pipes/tubes falling under CTH no. 7304 3939 and in all these cases the Let Export Order was given on 13.6.2008. They paid export duty amounting to Rs.70,29,752/-, as per Notification no. 66/08 dated 10.5.2008. Vide Notification 77/08 dated 13.6.2008, the export duty on the said goods was withdrawn and the exporter filed refund claims on the said exports. The exporter also filed appeal against the order of assessment under the above seven shipping bills with the Commissioner (Appeals), Mumbai Zone I and the Commissioner vide Order-in-Appeal no. 354-360/08 dated 31.12.08 rejected the appeals on the ground that the goods were exported before Notification no. 77/08 dated 13.6.2008 could become effective. The exporter M/s Jindal Saw Ltd. are in appeal before us against the said Order-in-Appeal.
2.1 The appellant also filed a refund claim before the Asst. Commissioner, who vide order dated 25.2.2009 rejected the refund claim of the appellant against which the appellant preferred an appeal before the Commissioner (Appeals). The Ld. Commissioner (Appeals) vide order dated 15.9.2009 allowed their appeal on the ground that Notification 77/08 dated 13.6.2008 takes effect from midnight of 12th and 13th of June and according to Section 16 of the Customs Act, 1962, the date on which Let Export Order is given is the relevant date for determining the rate of export duty. Since on 13.6.2008 the export duty is nil, the exporter is not liable to payment of any export duty and therefore they are rightly entitled to the refund of the export duty wrongly paid. The department is in appeal against this order on the ground that there are two orders in appeal contrary to each other and the exporter has not challenged the assessment of export duty and therefore in terms of the apex court judgement in the case of Priya Blue reported in 2004 (172) ELT 145 (SC) the refund claims are not admissible.
3. The ld. counsel for the appellant submits that the appeal of the department is factually incorrect and they have challenged the assessment order which was rejected by the lower appellate authority and against the said order they are in appeal before this Tribunal. Notification 77/08 is dated 13.6.2008 and therefore takes effect from the midnight of 12th and 13th June 2008 and since on 13.6.2008, the export duty is nil they are not liable to pay any export duty and they are rightly entitled for the refund.
4. The ld. JCDR fairly concedes the issue.
5. We have carefully considered the rival submissions. In the instant case, the appellant had challenged the assessment order before the Commissioner (Appeals) at the relevant time who rejected their appeal and they are before us against the said order. Therefore, the ratio of the Priya Blue does not apply to the facts of the present appeals. As regards the applicability of Notification 77/08 which is dated 13.6.2008 there is no doubt or dispute about the fact that Notification takes effect from the midnight of 12th and 13th June 2008. In the instant case, the Let Export Order has been given on 13.6.2008 and therefore the benefit of Notification 77/08 dated 13.6.2008 shall apply to the exports made by the appellant and hence they are rightly entitled for the refund of export duties wrongly paid by them and we hold accordingly.
6. Thus seven appeals filed by M/s. Jindal Saw Ltd. are allowed with consequential reliefs, if any, and the appeal filed by the department is dismissed as devoid of merits.
(Operative part pronounced in Court) (Ashok Jindal) (P.R. Chandrasekharan) Member (Judicial) Member (Technical) SR 5