ORDER
S.S. Sekhon, Member (T)
1. Heard both sides in the matter which has come back after de novo adjudication. The issue involved in this matter revolves in a narrow compass. After waiver of the pre-deposit we take up the appeal itself, for disposal.
2. The issue involved in this case is that the applicant/appellant company who had imported certain goods from Nepal, seeks exemption of the Special Additional Duty (here-in-after referred to as SAD), vide Serial Nos. 31 and 32 of the Table annexed to Notification No. 18/2000-Cus., dated 1-3-2000, while the Department is holding that Notification No. 18/2000-CUS. is carrying two conditions for claiming exemption. These conditions are – (a) with regard to exemption from whole of duty of Customs leviable; and (b) that it is required that the exemption should be from whole of additional duty of Customs under Sub-Section (1) of Section 3 of the Customs Tariff Act, 1975, which is not fulfilled as the subject goods are not exempted from that duty. The Commissioner has found and held as follows:
It is well-settled position of law that special Act/Rules/Notifications made thereunder will prevail over general Act/Rules/Notification. Notification No. 37/96-Cus, dated 23-7-1996 stipulates special duty exemption scheme with regard to Treaty of trade between two countries i.e. India & Nepal, which made it expressively clear that the specified goods mentioned in the said table to the notification shall be exempted when imported into India from Nepal from whole of the duty of Customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975. Certainly this notification has got more importance over any other notifications issued so far in this regard. This notification dated 23-7-1996 supra, was amended by issuance of Notification No. 124/2000-Cus. dated 29-9-2002 which exempted special additional duty leviable under Section 3A of the said Customs Tariff Act. In other words, exemption from SAD was granted only with effect from 29-9-2000, not from any period prior to it. Even Hon’ble High Court, Patna in M.J.C. No. 973 of 2001 in the case of Hillman Woolen Co. v. the Union of India & Ors. pronounced judgment as ‘consequently, the benefit of exemption from payment of Special Additional Duty would be available to the petitioner of that case only from the date of issuance of the exemption notification and not from any period prior to it.
We find that the observation of the Commissioner that special Notifications/Rules etc. will prevail over the other Notifications i.e. Notfh. No. 37/96-Cus., dated 23-7-1996 as well as Notfh. No. 18/2000-Cus., dated 1-3-2000 – cannot be upheld. It is well-settled that if the benefit under a particular Notification is available, the benefit cannot be denied and it is for the assessee to opt for the benefit. Serial Nos. 31 and 32 of the Notification No. 37/96-CUS., read with Notification No. 18/2000, would clearly exempt the special goods from SAD, as there is no basic and other duty chargeable on the special goods imported from Nepal, as is evident from the bill of entry produced.
3. We find no merits in the Department’s view to deny the benefit of the exemption under Serial Nos. 31 and 32 for the reasons as arrived at by the Commissioner. The Order of the Commissioner (Appeals) cannot be sustained and is set aside.
4. In view of the findings, both the appeal and the Stay Petition are disposed of by allowing the appeal filed by the applicant/appellant company.
(Pronounced in the open court.)