ORDER
S.L. Peeran, Member (J)
1. The appellant is aggrieved with Orders-in-Appeals Nos. 24 and 25/01-Cus., dated 5.9.2005 confirming the imposition of Special Additional Duty (SAD). The ground raised by the Counsel is that when the goods were imported, the said SAD had not been introduced. The imported machinery was purchased from China during the period 1995 tol997 and had deposited the same in a warehouse under Into-bond Bills of Entry. They were cleared during August 1998 onwards under different ex-bond Bills of Entry. As the said SAD was introduced after the import of the goods, hence, they cannot be charged to duty.
2. The Counsel submits that the Revenue’s appeal in their own case was allowed by Final Order No. 417/04, dated 5.2.2004 passed by the Hon’ble President in the light of the Apex Court judgment rendered in the case of LML Ltd. v. CC Kanpur . However, that appeal had been admitted by the Supreme Court on the ground that the earlier Bench of the Apex Court had not taken note of the Section 17 of the Customs Act. It is his submission that the latter judgment of Tribunal has clearly given the benefit in respect of duties which were imposed after the date of import. He relies on the judgments of the Tribunal rendered in the following cases:
(i) DCW Limited v. CC Tricky reported in 2002 (147) E.L.T. 1003
(ii) M.K.P. Fashions v. CC Kol. (Port)
(iii) VBC Industries Ltd. v. CC Chennai
(iv) CC Cochin v. Raghav Enterprises & Am. .
3. The learned SDR points out that the Apex Court has not set aside the earlier order rendered by 3 judges in LML Limited and therefore, the Hon’ble President was justified in allowing the Revenue’s appeal against the assessee. He submits that so long LML Limited’s case is in existence, the subsequent Tribunal orders cannot be followed. He also points out that there is no stay of the Apex Court in the assessee’s case. He prays for dismissal of the appeal.
4. On a careful consideration, we find force in the SDR’s arguments. The Revenue’s appeal against the assessee on this very issue was allowed by the President Bench by Final Order No. 417/04, dated 5.2.2004 in the light of the Apex Court judgment rendered in the case of LML Limited, which is still in force. The Apex Court while admitting assessee’s plea has not stayed the operation of the Tribunal’s order, which was passed by the Hon’ble President. The finding recorded by the President Bench in the assessee’s own case in Final Order No. 417/04 in Para 4 is reproduced here below:
4. We find merit in the contention raised on behalf of the Revenue. The Trade Notice dated 15.1.1999 has no application in the respondent’s case as the Trade Notice was applicable only in the case of 100% EOU. The Board’s letter F. No. 345/25/98-TRU (Pt), dated 27.8.1998 relied on by the respondent has also no application in its case since it related to clearance by 100% EOU. Respondent is admittedly not a 100% EOU. On the other hand, the ratio of the decision of the Hon’ble Supreme Court in LML Ltd. v. CCE Kanpur is directly applicable to the facts of the present case. Relevant portion of the above judgment reads as follows:
5. The point to note is that for the purpose of customs duty, the taxable event occurs on the date on which the goods are cleared from a bonded warehouse for house consumption. It is that date which is relevant for the purposes of the rate of customs duty and any additional duty thereon. In the present cases, on the dates on which the goods were cleared from the bonded warehouses the special additional duty, introduced on 1st June, 1998 was already in existence and the assessee was correctly made liable to pay the same.
In view of the above, we hold that the Commissioner has erred in reversing the order passed by the adjudicating authority. We, therefore, set aside the order passed by the Commissioner (Appeals), and restore the order of the adjudicating authority. The appeal stands allowed as above.
5. We are bound by the Apex Court decision rendered in the case of LML Limited, as the same has not been set aside by a Larger Bench of the Apex Court. Respectfully following the ratio of the Apex Court judgment rendered in the case of LML Limited, which has been applied in the assessee’s own case, we find no merit in this appeal and the same is rejected.
(Operative portion of this Order was pronounced in open Court on conclusion of hearing)