ORDER
K.K. Usha, J. (President)
1. In this appeal at the instance of Revenue the issue raised is whether the goods imported by the respondent are chargeable to special additional duty or not. The adjudicating authority took the view that the goods are chargeable to special additional duty at the rate of 4% vide Notification No. 56/98-Cus., dated 1-8-98. In coming to the above conclusion reliance was placed on the decision of the Hon’ble High Court of Andhra Pradesh in Simplex Castings Ltd. v. UOI – 1998 (104) E.L.T. 318 (A.P.). On appeal by the assessee, the Commissioner (Appeals) reversed the above order relying on the decision of this Tribunal in NGEF Ltd. v. CC & CE (Appeals) – 1998 (78) ECR 465 (Trib.). Reliance was also placed on the Trade Notice No. 2/GL-01/CE/PRO/Cal/99, dated 5-1-99 issued by the Commissioner of Central Excise, Calcutta-II. The learned Commissioner (Appeals) took the view that even though the clarification in the above mentioned Trade Notice has been given in the context of 100% EOU yet its ratio is equally applicable to the present case. Decision of the Andhra Pradesh High Court relied upon by the original authority was distinguished by the learned Commissioner (Appeals) on the ground that it was a case where the auxiliary duty of Customs was increased to 25% from 5% but in the case of SAD it was a new levy which was not in existence at the time of import of the impugned goods.
2. It is contended by the learned DR on behalf of the Revenue that the Commissioner (Appeals) has erred in taking the view that SAD was not in existence at the time of the relevant import. Relying on the decision of the Hon’ble Supreme Court in LML Ltd. v. CCE, Kanpur – 2002 (142) E.L.T. 273 (S.C) it was contended by the learned DR that the relevant date for the purpose of Customs and any additional duty thereon is the date on which the goods were cleared from a bonded warehouse for home consumption. In the present case the respondent imported certain machinery from China under Bond Bill of Entry dated 23-10-97 and the same was kept in company’s Bonded warehouse. The goods were cleared under Ex-bond Bills of Entry dated 21-10-98 and 5-1-99. SAD was introduced w.e.f. 2-6-98 in the Budget of 1998. Therefore, the Revenue contends that demand of SAD was fully justified.
3. The learned Counsel appearing on behalf of the respondent placed reliance on Trade Notice dated 5-1-99 and contended that SAD being a new levy cannot be levied on goods imported prior to 2-6-98 but cleared as such subsequent to the said date. The respondent brought to our notice a decision of the West Regional Bench of the Tribunal in CCE, Ahmedabad v. Ashima Fabrics – 2003 (154) E.L.T. 530.
4. We find merit in the contention raised on behalf of the Revenue. The Trade Notice dated 5-1-99 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 27-8-98 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 purposes 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.