Custom, Excise & Service Tax Tribunal
M/S. Cp Aqua Culture India P. Ltd vs Commissioner Of Customs (Imports), ... on 4 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/17/2005
(Arising out of Order-in-Appeal C. Cus. No. 781/2004 dated 29.10.2004 passed by the Commissioner of Customs (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. CP Aqua Culture India P. Ltd. Appellant
Vs.
Commissioner of Customs (Imports), Chennai Respondent
Appearance Ms. Pramila , Advocate, for the Appellant Shri M. Rammohan Rao, DC (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 04.04.2014 Date of Decision: 04.04.2014 Final Order No. ____________ The appellant is a 100% EOU. They exported Shrimps under the cover of 78 Shipping Bills in the year 2001 02 and paid cess under the Agricultural Produce Cess Act, 1940. The appellants were not aware that Notification No. 451/2001 dated 30.6.2001 exempted payment of cess on export of marine products by the EOUs and the units in the Export Processing Zones and Special Economic Zones. The appellant filed refund claim on 29.4.2004 for refund of Rs.32,97,617/- against the 78 Shipping Bills. The adjudicating authority rejected the refund claim on the ground that the refund claim is hit by limitation under Section 27(1)(b) of the Customs Act, 1962 and also on the ground of unjust enrichment. By the impugned order, the Commissioner (Appeals) upheld the adjudication order and rejected appeal filed by the appellant.
2. The learned counsel on behalf of the appellant fairly submits that there is a subsequent development in this matter insofar as the Honble Madras High Court and the Tribunal held that Shrimps and Prawns are not as same as fish as mentioned in the Schedule to the said Act, 1940. She relied on the following decisions:-
(a) Commissioner of Customs Vs. Edhayam Frozen Foods 2008 (230) ELT 225 (Mad.)
(b) Commissioner of Customs Vs. Edhayam Frozen Foods 2005 (190) ELT 72 (Tri.)
(c) Commissioner of Customs Vs. Bharathi Marine Exports 2006 (204) ELT 569 (Tri.)
(d) Commissioner of Customs Vs. Asvini Fisheries Ltd. 2007 (216) ELT 225
3. It is contended that in view of the above decisions, Prawns are not fish and it is not covered in the Schedule to the said Cess Act, 1940. Section 5A of the said Act, 1940 provides that the provisions of the Customs Act and Rules relating to refunds shall apply in relation to levy and collection of customs duty of all articles as mentioned in the Schedule. It is her submission that prawns is not mentioned in the Schedule and therefore the provisions of Customs Act in respect of refund under Section 27 cannot be invoked. It is contended that this issue was not raised before the authorities below and therefore the lower authority should examine this issue.
4. On the other hand, the learned AR on behalf of Revenue submits that the new plea taken by the appellant cannot be accepted at this stage. He submits that the appellant claimed refund claim on the basis of exemption notification and Section 27 would squarely apply in this case. Without prejudice, it is submitted that the departmental authorities are bound by the limitation prescribed under the Customs Act. It is submitted that any refund claim filed before the customs officers would be covered under Section 27 of the Act, which is settled by various decisions of the Honble Supreme Court and the Tribunal as under:-
(a) Porcelain Electrical Mfg. Co. Vs. Collector of Central Excise 1998 (98) ELT 583 (SC)
(b) Collector of Central Excise Vs. Doaba Co-operative Sugar Mills 1988 (37) ELT 478 (SC)
(c) Union of India Vs. Kirloskar Pneumatic company 1996 (84) ELT 401 (SC)
(d) Supreme Exports Vs. Commissioner of Customs 2009 (247) ELT 294
(e) Rasoi Ltd. Vs. Collector of Central Excise 1993 (63) ELT 521
(f) Commissioner of Customs Vs. Rice India 2009 (227) ELT 50
(g) Avanti Feeds Ltd. Vs. Commissioner of Customs 2007 (213) ELT 280.
5. After considering the submissions of both sides and on perusal of records, I agree with the submission of the learned AR on behalf of Revenue that refund claim was filed on the basis of the exemption Notification No. 451/2001 dated 30.6.2001 which would be governed by Section 27 of the Customs Act, 1962. Accordingly, both the authorities below had rightly rejected the refund claim on the ground of time limit and unjust enrichment. However, there is a subsequent development in this matter as decided by Honble High Court and the Tribunal that Prawns and Shrimps are not fish and is not covered to the Schedule of the said Cess Act, 1940. In my considered view, this issue should be examined by the lower authority in the interest of justice.
6. In view of that, the adjudicating authority is directed to examine the refund claim in the light of the decision of the Honble High Court as referred above, in accordance with law. Needless to say that the lower authority shall give a reasonable opportunity of hearing to the appellant before passing an order. Appeal is disposed of in the above terms.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 4