ORDER
S.L. Peeran, Member (Judicial)
1. A short question that arises for consideration in this appeal is as to whether the appellants are entitled for full exemption from special additional duty in terms of Rule 13 of Notification No.56/98 as a result of their having fulfilled the conditions of Notification No.104/95-Cus. dt.30.5.95. Before the Commissioner (Appeals), the lower authorities relied on the judgments rendered in their own case vide final order No.729 & 730/99 dt.7.4.99 with regard to the same item imported on which the Customs duty and additional duty had been exempted. Both the authorities have been applied the ratio of the CEGAT final order rendered in the appellants own case. The Commissioner (Appeals) has stated in the impugned order as follows:
“…..The CEGAT order merely holds that exemption under Sl. No.13 of the Notification 56/98 is available for the goods imported in the instant case under Notification No.104/95 but does not state that the conditions specified in Notification No.104/95 need not be fulfilled for this purpose. Going by the wording of the Notification No.56/98, it follows that the SAD at Nil rate is applicable to goods imported under listed Notifications subject to the same conditions that are required to be followed in respect of the listed Notifications, including Notification No.104/95. This becomes all the more obvious from the fact that Serial No.14 of the Table to Notification No.56/98 which levies Nil rate of SAD for imports under Notification No.34/57 (DEPB) indicates no such stipulation with regard to fulfilling any conditions of that Notification, even though Notification No.34/97 also inter alia requires that the DEPB be debited for the exemption from basic customs duty and additional customs duty. As such, I find no infirmity in the order of the lower authority holding that the Nil rate of SAD is subject to the condition that the same debited in the passbook and rejecting the request for re-credit in the passbook.”
2. Arguing on behalf on the appellants the Ld. Counsel took us to the final order No.729 & 730/99 dt.7.4.99 para 5 & 6 which is reproduced herein:
“5. We have carefully considered the rival submissions as well as the records of the case. We find that in order in appeal impugned, the Ld. Commissioner (Appeals) has; invoked clause 12 of Notification No.56/98 supra and has read it along with clause 13 under which the appellants has claimed duty exemption. We find that from a plain reading of the body of the said Notification, it is clear that the intention of the Government was to provide exemption from the special additional duty of customs as per the table contained in the said Notification. A plain reading of the table shows that there are as many as 15 serial numbers and against each of these there are different columns containing description of goods as well as the rate of special additional duty i.e. effective rate of duty prescribed under this Notification. Each of these serial numbers deal with different situations. For example, Serial Number 1 deals with goods falling under heading 98.03, serial number 2 deals with only various types of gold and silver as prescribed therein and sr. number 5 deals with all goods falling under sub heading 2709.00 etc. Therefore, it is clear that there is nothing contained in the Notification by which one can come to the conclusion that clause 12 or any other clause of this Table has to be read in conjunction with any other clause of the table i.e. to say that each serial number in the table of the Notification stands on independent footing. In view of this finding, we find in serial number 13, full exemption from the special additional duty of customs is available to any goods which are also exempt under Notification No.104/95-cus dt.30.5.95 and since this is exactly the facts of the case in the present appeals, therefore, the duty exemption claimed by the appellants is correctly available to them under law. In fact, serial number 3 of the said Table of this Notification exempts from special additional duty of customs of goods which are also exempt from the whole of basic customs duty and the whole of additional duty of customs. In this case, since the goods have been assessed to full exemption on both counts, therefore, even under serial number 3 of the said table full exemption from the special additional duty of customs would be available.
6. In view of the aforesaid findings, we set aside; the order in appeal impugned and allow the appeals, with consequential relief, if any, as per law.”
The Ld. Counsel points out that from the above paragraphs that the Tribunal has given a categorical and clear findings on the question of exemption from the special additional duty of customs as per table contained in the said Notification in terms of Clause 13 of Notification No.56/98. The Tribunal, besides, has also noted that appellants are also otherwise covered by Sl. No.3 of the said table granting full exemption from payment of special additional duty of customs. Sl. No.3 clearly held that where
“all goods exempted falling within the said first schedule, which are exempt from:-
(a) the whole of the duty of customs leviable thereon under the said First Schedule and
(b) the whole of the additional duty of Customs leviable thereon under sub section (1) of section (3) of the said Customs tariff Act.”
The rate of special excise will be nil. The Ld. Counsel points out that the Commissioner (Appeals) has not given any findings in the extracted portions of the applicability of Sl. No.3 of the Notification. The Tribunal has held that the issue is covered by Sl. No.3 as well as by Sl.No.13 for full exemption from Special Excise Duty. He submits that the issue being covered therefore one both the authorities are duty bound to have followed the ratio of the decision of the Tribunal as the Revenue has not taken up the matter before the Apex Court and the Tribunal order has became final. On the other hand, the Ld.DR pointed out to the extracted portion and submits that the benefit can be granted only if the conditions of the Notification had been fulfilled. The Commissioner has noted that the lower authority’s finding that the full rate of SED is applicable as it is subject to the conditions which has not been fulfilled and hence has rigidly rejected the request for re-crediting the SED in the pass book and the lower authority’s order is correct. He further submits that although the Commissioner (Appeals) has not given any findings on the Sl. No.3 even then he has confined his order to the said Sl. No. and the same is not applicable to the goods.
3. On a careful consideration of the submissions made by both the sides, we see lot of force in the submissions made by Ld. Counsel in this matter. Ld. Commissioner’s order is unsustainable. Ld. Commissioner ought to have followed the ratio of the Tribunal’s final order No.279 – 73/99 dt. 7.4.99 in the appellants own case. Further, there is no findings recorded by the Ld. Commissioner. The Tribunal has clearly analysed the matter and has given a categorical and clear findings about the SAD being not imposable on the imported goods. Further, the Tribunal has also held that in any event the goods are covered by Sl.No.3 of the said Notification. But there is no findings given by both the authorities i.e. they have clearly not followed the Tribunal order. We are unable to accept the plea of the Ld. DR that Sl. No.3 is not specific to the goods and cannot be applied. Further, once the issue has been concluded and findings recorded by the Tribunal, it is not open to the Revenue to re-adjudicate the matter. But they are required to accept the Tribunal rulings. In the present case they have also not challenged the issue before the Apex Court. There is no ground for rejecting the appellant’s prayer. Therefore, we accept the appellants prayer made in this case by holding that the issue in covered by the Final order No.729 – 730/99 dt.7.4.99 rendered by this Tribunal in the appellant’s own case. The Appeal is allowed with consequential relief.
(order dictated and pronounced in the open court)