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Commissioner vs It on 30 June, 2010

Gujarat High Court
Commissioner vs It on 30 June, 2010
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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TAXAP/849/2009	 5/ 5	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

TAX
APPEAL No.849 of 2009
 

===================================================
 

COMMISSIONER
OF CUSTOMS - Appellant(s)
 

Versus
 

NEELKANTH
POLYMERS - Opponent(s)
 


=================================================== 
Appearance
: 
MS AMEE YAJNIK for Appellant(s) :
1, 
None for Opponent(s) :
1, 
===================================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE D.A.MEHTA
		
	
	 
		 
			 

 

			
		
		 
			 

           
			and
		
	
	 
		 
			 

 

			
		
		 
			 

HONOURABLE
			MS.JUSTICE H.N.DEVANI
		
	

 


Date
: 30/06/2010 

 


 ORAL
ORDER

(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)

Appellant-revenue
has challenged order dated 10.10.2008 made by Customs Excise and
Service Tax Appellate Tribunal (the Tribunal) by proposing following
four questions:

Whether
the Tribunal was correct in holding that the appellant exempted from
the payment of Customs duty and Additional Customs Duty under
Notification No.52/2003-Cus dated 31.3.2003 and board’ Cir
No.807/4/2005-CX dated 10.02.2005?

Whether
the demand of duty is not sustainable when bill of entry not
challenged and in the case of 100% EOU, unless goods removed from
the warehouse, short levy is not enforceable?

Whether
the Tribunal was correct to hold, that the impugned goods were
removed from the warehouse or were not used in the production of the
articles of export, as the impugned goods were not cleared from the
warehouse, there was no collection duty on the goods entailing short
levy. Therefore there can not be any demand under section 28 of the
Customs Act, 1962, whereas the fact remains that it was a tentative
assessment of the goods at the point of import for transit movement
upto approved warehouse only and by way of issuing show cause notice
the department has initiated to make correct assessment of the goods
before the same were issued for consumption in the EOU?

Whether
in the facts and circumstances of the case mentioned above, the
Hon’ble Tribunal was right in law by allowing the appeal of
appellant or otherwise?

It
is submitted by the learned counsel appearing for the appellant that
the additional duty of customs is imposed under the Finance Act,
1999 and not under the Customs Tariff Act, 1975 and, therefore, the
respondent-assessee could not have claimed benefit of exemption
under Notification No.52/2003-Cus dated 31.03.2003 and Circular
issued by CBEC No.807/4/2005-CX dated 10.02.2005. That the tribunal
had committed an error in granting such benefit of exemption.

The
facts which are relevant for the present are not in dispute.
Respondent-assessee imported 217.280 MTs of High Speed Diesel and
filed Bills of Entry No.7840 dated 28.03.2004, 7134 dated 19.05.2004
and 10930 dated 27.07.2004. The Bills of Entry were duly cleared by
the Customs authority without demanding payment of additional duty
of customs at the specified rate under Section 116 of the Finance
Act. 1999. The show cause notice issued by the authority
subsequently came to be adjudicated calling upon the
respondent-assessee to make payment of the duty stated to be short
levied by invoking provisions of Section 28 of the Customs Act, 1962
(the Act). The stand of the respondent-assessee that the unit is
100% EOU and, therefore, exempt from the payment of Customs Duty and
Additional Customs Duty under Notification No.52/2003-Cus dated
31.03.2003 and CBEC Circular No.807/4/2005-CX dated 10.02.2005 was
not accepted by the authority. The matter was carried in appeal
before the Tribunal and the assessee succeeded.

Learned
counsel for the appellant-revenue could not dispute the fact that
the Bills of Entry presented by the assessee were assessed and goods
permitted to be cleared. Tribunal has further recorded that in case
of a 100% EOU goods which are not removed from the warehouse cannot
be subject to short levy of duty. Even this fact has not been
disputed as can be seen from proposed Question No.3.

In
the circumstances, unless and until the assessment framed by
clearing the Bills of Entry is validly set aside by taking recourse
to relevant provisions of law no duty, alleged to be short levied,
could have been demanded by invocation of provisions of Section 28
of the Act. In the circumstances, there is no legal infirmity in the
impugned order made by the Tribunal.

Accordingly,
in absence of any substantial question of law, the appeal is
dismissed.

Sd/-

[D. A.

MEHTA, J]

Sd/-

[
H.N.DEVANI, J]

***

Bhavesh*

   

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