Gujarat High Court
Commissioner vs Neelkanth on 30 June, 2010
Gujarat High Court Case Information System
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TAXAP/849/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No.849 of 2009
===================================================
COMMISSIONER
OF CUSTOMS - Appellant(s)
Versus
NEELKANTH
POLYMERS - Opponent(s)
===================================================
Appearance
:
MS AMEE YAJNIK for Appellant(s) :
1,
None for Opponent(s) :
1,
===================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 30/06/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE D.A.MEHTA) Appellant-revenue has challenged order dated 10.10.2008 made by Customs Excise and Service Tax Appellate Tribunal (the Tribunal) by proposing following four questions:
Whether the Tribunal was correct in holding that the appellant exempted from the payment of Customs duty and Additional Customs Duty under Notification No.52/2003-Cus dated 31.3.2003 and board' Cir No.807/4/2005-CX dated 10.02.2005?
Whether the demand of duty is not sustainable when bill of entry not challenged and in the case of 100% EOU, unless goods removed from the warehouse, short levy is not enforceable?
Whether the Tribunal was correct to hold, that the impugned goods were removed from the warehouse or were not used in the production of the articles of export, as the impugned goods were not cleared from the warehouse, there was no collection duty on the goods entailing short levy. Therefore there can not be any demand under section 28 of the Customs Act, 1962, whereas the fact remains that it was a tentative assessment of the goods at the point of import for transit movement upto approved warehouse only and by way of issuing show cause notice the department has initiated to make correct assessment of the goods before the same were issued for consumption in the EOU?
Whether in the facts and circumstances of the case mentioned above, the Hon'ble Tribunal was right in law by allowing the appeal of appellant or otherwise?
It is submitted by the learned counsel appearing for the appellant that the additional duty of customs is imposed under the Finance Act, 1999 and not under the Customs Tariff Act, 1975 and, therefore, the respondent-assessee could not have claimed benefit of exemption under Notification No.52/2003-Cus dated 31.03.2003 and Circular issued by CBEC No.807/4/2005-CX dated 10.02.2005. That the tribunal had committed an error in granting such benefit of exemption.
The facts which are relevant for the present are not in dispute. Respondent-assessee imported 217.280 MTs of High Speed Diesel and filed Bills of Entry No.7840 dated 28.03.2004, 7134 dated 19.05.2004 and 10930 dated 27.07.2004. The Bills of Entry were duly cleared by the Customs authority without demanding payment of additional duty of customs at the specified rate under Section 116 of the Finance Act. 1999. The show cause notice issued by the authority subsequently came to be adjudicated calling upon the respondent-assessee to make payment of the duty stated to be short levied by invoking provisions of Section 28 of the Customs Act, 1962 (the Act). The stand of the respondent-assessee that the unit is 100% EOU and, therefore, exempt from the payment of Customs Duty and Additional Customs Duty under Notification No.52/2003-Cus dated 31.03.2003 and CBEC Circular No.807/4/2005-CX dated 10.02.2005 was not accepted by the authority. The matter was carried in appeal before the Tribunal and the assessee succeeded.
Learned counsel for the appellant-revenue could not dispute the fact that the Bills of Entry presented by the assessee were assessed and goods permitted to be cleared. Tribunal has further recorded that in case of a 100% EOU goods which are not removed from the warehouse cannot be subject to short levy of duty. Even this fact has not been disputed as can be seen from proposed Question No.3.
In the circumstances, unless and until the assessment framed by clearing the Bills of Entry is validly set aside by taking recourse to relevant provisions of law no duty, alleged to be short levied, could have been demanded by invocation of provisions of Section 28 of the Act. In the circumstances, there is no legal infirmity in the impugned order made by the Tribunal.
Accordingly, in absence of any substantial question of law, the appeal is dismissed.
Sd/-
[D. A. MEHTA, J] Sd/-
[ H.N.DEVANI, J] *** Bhavesh* Top