Customs, Excise and Gold Tribunal - Tamil Nadu
Noel Agritech Ltd. vs Commissioner Of Custom on 9 October, 2000
Equivalent citations: 2001(128)ELT227(TRI-CHENNAI)
ORDER S.S. Sekhon, Member (T)
1. These stay applications & appeals arise from three separate orders in which, the Commissioner (Appeals) had dismissed the stay applications & appeals later on in two cases without hearing and in the third case hearing was granted and appeal was dismissed for non-compliance of the pre-deposit amount.
2. The brief facts of the case are that appellants who were 100% EoU licenced under the EoU scheme were engaging in the export of cut fresh flowers to various destinations abroad. They sought permission to effect clearances to Domestic Tariff Area (DTA) from the concerned Jurisdictional Development Commissioner, which was granted. They effected such clearances without following the prescribed procedure as alleged in the proceedings. Appellants' case is that they approached the Customs authorities at Mangalore port where the capital goods viz. machinery was imported for installation in their 100% EoU premises at Mangalore which is away from the Mangalore port town area. Since the Customs House did not indicate to them as to what procedure and documentation was required, clearances were effected and in any case cut fresh flowers are not chargeable to any duty in the Central Excise Law and therefore there was no question of a levy under Section 3A for the cut fresh flowers removed into the DTA.
3. Ld. Consultant Shri A. Vijayaraghavan appearing for the appellants submitted and relied on the case of Larger Bench in the case of Ferrous Alloys Corporation Ltd reported in 1995 (77) E.L.T. 31 to submit that the jurisdiction over an Export Oriented Unit was the jurisdiction of the territorial officers where the unit was situated and not the Customs House from where the capital goods were imported and final goods were exported.
4. We have heard ld. DR Shri S. Sudarsan for the department who submits that there is a Special Officer appointed as Asst. Commissioner of Customs in charge of EoU in that area who is the competent officer having jurisdiction in this case and therefore the orders have been decided and determined by the jurisdictional officer. The Commissioner (Appeals) has the designation of Commissioner of Central Excise & Customs (Appeals), Bangalore who has jurisdiction over the entire State of Karnataka where the appellants unit fall and therefore there is no apparent conflict of jurisdiction. He reiterated the order and submitted that there was no ground for staying the pre-deposit.
5 The stay applications along with the appeals are taken up for decision after waiver of pre-deposit with the consent of both sides.
6. We have carefully considered the rival submissions and the material and find -
(a) there is no duty on removals to DTA under the Central Excise. & Salt Act, 1944 which is applicable only to such goods which are permitted to be sold in the DTA. In this connection we rely on the case of Siv Industries Ltd - [2000 (37) RLT 583] of the Supreme Court wherein in para 18 thereof it has been held that Central Excise levy is only on goods permitted to be sold; for contravention of the procedural irregularities. Chapter VA of the Central Excise Rules prescribes the procedure to be followed and consequential action under the rules could be invoked. In the present case duty, penalties & CESS have been invoked under the provisions of Customs Act under Section 28 for duty, Section 112 for penalty. Since flowers have been grown in India and removed from the premises within India to a premises in India, we cannot appreciate how customs duty would be applicable.
(b) Since principles of natural justice have been grossly violated in the decision of the Commissioner (Appeals), inasmuch as they have not determined the amounts of pre-deposit and the matter on merits in two cases and in the third case they have summarily rejected the material and the grounds on pre-deposit of duty we would consider this case to be a fit case for remand for de novo decision by the lower authorities i.e. jurisdictional Asstt. Commissioner.
6. In view of our findings, we would set aside the order of the lower authorities and remand the matter back for re-determination of duty, if any, as per law. The appellants and the department will have a full freedom to rely on such material as they desire by following the principles of natural justice. The appeals are disposed of in the above terms.