Customs, Excise and Gold Tribunal - Mumbai
Super Cassettes Industries Ltd. vs Commissioner Of Customs on 31 January, 2001
Equivalent citations: 2001(131)ELT292(TRI-MUMBAI)
ORDER K.K. Bhatia, Member (T)
1. The appellants imported filter cartridge falling under Chapter 59 of the Customs Tariff. They filed bill of entry No. 6222, dated 21-12-1992 for the clearance of these cartridges at the Bombay Port. In the bill of entry filed by the appellants, they claimed the exemption under Notification 173/92-Cus., dated 30-4-1992 which exempted the imported goods from so much of the duty of customs or in excess of 55% ad valorem. The goods were duly assessed by the Customs authorities and the same were cleared on payment of the basic duty of customs at the rate as prescribed under this notification. Subsequently on 29-6-1993 the importers filed a refund claim with the Assistant Collector of Customs (Refund), New Custom House, Mumbai, claiming a refund of Rs. 1,31,255/- on the ground that at the relevant time the basic duty under the tariff on the imported goods were at the rate of 40% and since the duty prescribed in the exemption notification issued under Section 25 of the Customs Act can never be more than the tariff rate, they had paid excess duty and, therefore, they are entitled to the refund of the impugned amount. The Assistant Collector of Customs, vide his order dated 28-12-1994, rejected the refund claim of the party. The Assistant Collector, in his order, has observed that the party was claiming refund on the ground that tariff rate for basic custom duty in the case was 40%. Therefore, the same should only be charged and auxiliary duty on the concessional rate of 5% under the Notification 124/92 + CVD should be charged. It is stated that Notification 192/92 exempted the goods which are partially or wholly exempted from the duty of customs specified in the first schedule to the Customs Tariff Act, by virtue of such notification which are specified in the schedule to the above notification. It is stated that once the party ought to pay the tariff rate of basic customs duty, the Notification 192/92 will not be applicable and since the goods were not partially or wholly exempted from the benefit of Notification 173/92, as envisaged by Notification 192/92, the party was required to pay 40% (basic custom duty + 45% auxiliary + CVD) whereas they have paid 55% basic + CVD). He has also observed that the Supreme Court judgment in the case of CC v. BHEL -1992 (61) E.L.T. 332 is also not applicable in this case, since the facts of this case are different.
2. The party filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) rejected the appeal of the party, upholding the order passed by the lower authority.
3. The party is in appeal against the above order of the Commissioner (Appeals). We have heard Shri Gajendra Jain, C.A., for the appellants and Shri B.K. Choubey, JDR, for the respondents. The learned consultant for the appellants has reiterated the same grounds as mentioned in their application for claim of refund dated 29-6-1993 filed before the Assistant Collector of Customs. He has also relied on the decision of the Hon'ble Supreme Court in the case of CC v. Bharat Heavy Electricals Ltd. - 1992 (61) E.L.T. 332. The learned JDR for the Revenue, on the contrary, has contended that the exemption from the auxiliary duty under Notification 192/92-Cus. was subject to the appellants availing the exemption from basic custom duty under Notification 173/92. It is contended that the party first availed the exemption from the basic customs duty under Notification 173/92 and since this was a condition precedent for availing the exemption from auxiliary duty under Notification 192/92. Had the party not claimed the exemption from basic custom duty as specified under Notification 173/92, they would not have been extended the benefit of exemption for auxiliary duty under Notification 192/92-Cus., dated 14-5-1992. It is, therefore, contended on behalf of the Revenue that having once submitted to the propositions of these two notifications, it is not open to the appellants to revert back and claim the refund of the customs duty for extending the contentions as made by them in their refund applications.
4. We have carefully considered the submissions made before us. The gravamen of the submissions of the appellants before us is that at the relevant time the tariff rate of basic customs duty on the imported goods was @ 40% ad valorem whereas the rate of duty prescribed under Notification 173/92 was 55%. It is contended that it is well settled proposition of law that the duty prescribed under exemption notification under no circumstances can be more than what is prescribed under the tariff schedule. Therefore, they were liable to pay duty only @ 40% and consequently they are entitled to the refund of the excess duty paid @ 55% at the time of the import of the goods. The second submission made by the learned consultant for the appellants is that in the judgment of Bharat Heavy Etectricals Ltd. the Hon'ble Supreme Court have held that the exemption notifications in respect of basic customs duty and auxiliary duty are mutually exclusive and independent of each other. It is further stated in this judgment that relief under Notification 41/80 will not depend upon the actual operation or application or Notification 35/79 in the case of particular item or goods. It is, therefore, contended that the findings based on the arguments altogether contrary to the ratio laid in this judgment of the Hon'ble Supreme Court is not liable to be sustained and that should be set aside granting them reliefs.
5. In this case it is not disputed that the appellants at the time of import of the impugned goods opted for availing the exemption under Notification 173/92, dated 3-4-1992 which prescribed the rate of duty of 55% ad valorem which prescribed the rate of duty as in excess of the amount calculated at the rate of 55% ad valorem. At the time of filing the bill of entry before the clearance of the goods, they consciously opted to avail this concession and it is not the case of the appellants that they paid the duty by mistake or by misconception of law. The appellants subsequently contended that the tariff rate of basic custom duty on the imported goods at the relevant time was @ 40% ad valorem and, therefore, they are entitled to the refund of the balance of the amount paid between 55% ad valorem and 40% ad valorem. In other words, this seems to be contending that the rate of duty prescribed in the above said exemption notification cannot be more than the tariff rate and, therefore, there is apparently a mistake in drafting the notification. We are afraid this contention of the appellants cannot be considered either on facts or in law. It is well settled that the departmental officers and quasi judicial authorities being the creatures of the statute are not entitled to finding fault with the statutory provisions. They also cannot go beyond the provisions of the statute. In this case, since the appellants have consciously paid the duty @ 55% ad valorem at the time of import of the goods by availing the exemption under the aforesaid notification, we do not find any mistake in the same and, therefore, the assessments made by the lower authorities cannot be faulted. The Hon'ble Supreme Court in their judgment in the case of Bharat Heavy Electricals Ltd. referred to supra, have though directed that the notifications issued exempting the basic customs duty and the auxiliary customs duty are mutually exclusive and independent of each other, but in arriving at the conclusions as appended above, we have gone to the basic proposition of facts and law involved in this case and consequently come to the conclusion that in the facts and the circumstances of the case, the appellants are not entitled to any refund. Therefore, there is no force in the appeal of the party and the same is, accordingly, rejected.