Custom, Excise & Service Tax Tribunal
Rinaissance Gem & Jewellery Exports ... vs Commissioner Of Customs (Csi Airport), ... on 10 May, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL Nos. C/276/03 & C/238/04 (Arising out of Order-in-Original No. COMMR/MCT/12/2002 dated 31.12.2002 passed by Commissioner of Customs, Airport, Mumbai) For approval and signature: Honble Mr. S.S. Kang, Vice President and 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 :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Rinaissance Gem & Jewellery Exports Pvt. Ltd. Appellant Vs. Commissioner of Customs (CSI Airport), Mumbai Respondent And Commissioner of Customs (CSI Airport), Mumbai Appellant Vs. Rinaissance Gem & Jewellery Exports Pvt. Ltd. Respondent Appearance:
Shri Anil Balani, Advocate, for appellant-assessee Shri Manish Mohan, Authorised Representative (SDR), for Revenue CORAM:
Honble Mr. S.S. Kang, Vice President and Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of Hearing: 10.5.2011 Date of Decision: 10.5.2011 ORDER NO Per: S.S. Kang The assessee as well as the Revenue filed appeals against the same impugned order and they are therefore taken up together.
2. The brief facts of the case are that M/s. Rinaissance Gem & Jewellery Exports Pvt. Ltd. made import of primary gold by availing the benefit of Notification No.177/94-Cus. dated 21.10.1994. The Notification provides duty-free import of gold on the condition that the same will be used in the manufacture of jewellery for export. The Notification also provides that the importer shall maintain a proper account of import, consumption and utilisation of the goods imported and of the exports made by him, and shall submit account periodically to the Assistant Collector of Customs. On 1.12.1998, the business premises of the appellants were visited by the Customs officials and stock taking was conducted and it was found that the appellants were not filing any periodical accounts to the Revenue and as per the stock taking, there was a shortage of 8971.11 grams of primary gold. Show cause notice was issued and thereafter the adjudicating authority confirmed the demand in respect of the primary gold found short and imposed penalties.
3. The appellant filed appeal against the adjudication order. The Revenue also filed appeal for enhancement of the penalty.
4. The contention of the appellant is that as per the provisions of the Notification, 9% wastage is allowed in respect of studded jewellery and articles thereof. In the present case, the studded jewellery was manufactured out of the imported gold and the same were exported and the adjudicating authority has not allowed the 9% wastage which is provided under the Notification. The appellant also relied upon the following decisions of the Honble Supreme Court and the Tribunal:
(i) CC, Mumbai vs. MMK Jewellers 2008 (225) ELT 3 (SC);
(ii) R.B. Jewellery Corporation vs. CC, Mumbai 2006 (206) ELT 983 (Tri.-Mumbai).
5. The contention of the Revenue is that the adjudicating authority in para 18 of the adjudication order held that 9% wastage is taken into consideration while calculating the shortage in respect of primary gold. It is also submitted that the appellants were not filing any periodical returns regarding the stock to the Revenue and hence they have violated the conditions of the Notification.
6. We find that the main issue raised by the appellant is that whether 9% wastage on export of studded jewellery was taken into consideration while arriving at the shortage of the gold. The statement prepared at the time of verification is about total import of gold, total export, gold recovered from dust, gold in stock and the finding and mountings in stock. Taking into consideration this quantity, the shortage of 8971.11 grams was found. In the memo prepared in respect of stock taking there is no mention of 9% wastage which is provided under the Notification. In these circumstances, we find that the matter requires reconsideration by the adjudicating authority afresh. The impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after taking into consideration the conditions of the Notification as well as the case law relied upon by the appellant and after affording an opportunity of hearing to the appellant.
7. As the appeal in respect of the demand is being remanded, the appeal filed by the Revenue is also remanded to the adjudicating authority to redecide the issue of penalty.
8. Both the appeals are disposed of by way of remand.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (S.S. Kang) Vice President tvu 1 2