Customs, Excise and Gold Tribunal - Mumbai
Goa Paints Allied Products vs Commissioner Of Central Excise on 15 April, 1999
Equivalent citations: 1999(112)ELT904(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Delay in filing 11 appeals, caused by the requirement of their being as many appeals as there are notices, condoned.
2. Applications are for waiver of deposit of duty totalling Rs. 38.50 lacs and penalty of Rs. 1,000/-. The duty has been demanded on the ground that paints supplied by the applicant to the Indian Navy could not be entitled to the benefit of Notification 70/77 and, with effect from 16-3-1995 Notification 64/95 for the reason that they have not been used for consumption on board the Indian naval ship, but have been used to paint such ships under construction and in some cases to paint the goods such as submarine, and decking platform and pontoons which are not ships.
3. Advocate for the applicant says that the intention of the notification is to permit exemption from duty to goods intended to be used on board the Indian naval ship. He says, that the certificate in such cases are issued by the naval dockyard at Mumbai. He cites the Supreme Court judgment in State of Haryana v. Dalmia Dadri Cement Ltd. -1988 (14) ECR 292 in support. Financial hardship is claimed on the ground that the applicant has a carried forward loss of Rs. 62.51 lacs and produced a provisional balance-sheet.
5. The Departmental Representative Contends that the notification intends to exempt goods used on board the naval vessel and already constructed ship and clearly not applied to goods to ships under construction or to structures other than ships. He says that the judgment cited by the applicant will not apply because it was in a matter relating to Punjab General Sales Tax Act and dealt with goods for use. Here the exemption is for goods consumed and there is a difference. He disputes the claim of financial hardship on the ground that there is no audited balance-sheet.
6. Notices to show cause do not indicate evidence on the basis of which it is alleged that they are not used on board a naval ship. On the other hand, applicant has also not taken a specific stand that they are only used on such ships. If the supply was against the certificate by the naval authority that the goods were being purchased for such supply, prima facie, the benefit of the notification would apply. We note that it does not provide for submission of end use certificate. Prima facie therefore the Supreme Court judgment in State of Haryana v. Dalmia Dadri Cement Ltd. would apply to the facts of this case. Prima facie the distinction sought to be made by the departmental representative between "use" and "consumption" is irrelevant in this regard.
7. Accordingly, we waive deposit of the duty and penalty and stay their recovery.