Custom, Excise & Service Tax Tribunal
Adani Enterprises Ltd vs Commissioner Of Customs And Service Tax ... on 11 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 21310 / 2014 Application(s) Involved: C/Stay/21938/2014 in C/21761/2014-DB Appeal(s) Involved: C/21761/2014-DB [Arising out of order-in-original No. VIZ-CUSTM-000-COM-010-13-14 dated 31/01/2014 passed by Commissioner of CUSTOMS , VISAKHAPATNAM ] Adani Enterprises Ltd Adani House,nr.mithakhali Circle,navrangpura AHMEDABAD - 380009 GUJRAT Appellant(s) Versus Commissioner of Customs And Service Tax Visakhapatnam-cus CENTRAL EXCISE BUILDING... PORT AREA, VISAKHAPATNAM, - 530035 ANDHRA PRADESH Respondent(s)
Appearance:
Mr. Aqul Sheroaya, Adv For the Appellant Mr. R. Gurunathan, A.R. For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 11/08/2014 Date of Decision: 11/08/2014 Order Per : B.S.V.MURTHY The appellants have imported coal. The coal imported in the consignments was declared as steam coal. The department has taken a view that what is imported is bituminous coal and it fulfills all the characteristics of bituminous coal. As a result, differential customs duty has been demanded with interest.
2. Both sides agree that the issue is no longer res integra and this Bench vide Final Order No. 20998-21002/2014 dated 20th June 2014 in the case of Coastal Energy Pvt Ltd. Vs CC Visakhapatnam has decided the matter finally. In that order a view has been taken that if the coal imported satisfies the characteristics described for bituminous coal as per the Chapter Notes, the same need not be classified as steam coal and we have upheld the stand taken by the Revenue. Accordingly, in this case also the differential duty demand on the ground that the coal imported is bituminous coal has to be upheld and demand for interest also has to be upheld. A view has also been taken in that order that there will be no confiscation of coal, no fine in lieu of confiscation and no penalty, which would be applicable in this case also.
3. At this stage, the learned counsel submits that unlike the case of Coastal Energy Pvt. Ltd, the appellants have a claim regarding the eligibility for the benefit of Notification No. 46/2011 which provides for different rates of duty for import from ASEAN countries. He fairly admits that appellants did not have country of origin certificate at the time of import in view of the fact that appellants felt that they are eligible for the rate applicable to the coal imported by them as applicable to steam coal. Now that they have been held ineligible for the benefit of lower rate of duty in respect of steam coal, the appellant would like to claim the benefit of Notification No. 46/2011. He requests that the matter may be remanded to consider the eligibility of the appellant for the benefit of Notification No. 46/2011 in respect of imports made by them which are eligible for the benefit. Since the appellant proceeded on the assumption that the coal imported by them was steam coal and therefore did not contemplate claiming the benefit of Notification No. 46/2011, we consider it appropriate that the original authority should consider the applicability of the benefit of the Notification in accordance with law and judicial precedents, if any, that may be cited by the appellants in the remand proceedings.
4. At this stage, learned A.R. submits that appellants should be required to deposit the entire amount that would become payable in respect of imports for which the benefit of Notification No. 46/2011 would not be applicable. While we do not agree to his submission that appellant should deposit the entire amount, we consider this request to be reasonable. Accordingly the appellant is directed to deposit the entire amount of differential duty with interest, if any, payable in respect of imports made by them from countries in respect of which the benefit of Notification No. 46/2011 is not available within eight weeks from today and report compliance to the Commissioner. The Commissioner after noting the compliance, shall proceed to adjudicate the matter afresh after giving reasonable opportunity to the appellants to present their case.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Pnr...
3