2013 (10) TMI 1369 - HC - Customs

whether an importer, while availing of the BCD exemption @ 0% under FTA (notification No. 46/2011-Customs), can simultaneously avail of the concessional CVD @ 2% as per Notification No. 12/2012-Customs, or he has to pay the CVD

Issues:
1. Simultaneous availing of concessional CVD and BCD exemption on imported steam coal.
2. Interpretation of Notification No. 12/2013-Cus. and Notification No. 64/2012-Cus.
3. Legality of Customs Department's stand on availing concessions.
4. Applicability of Circular No. 41/2013 on the case.
5. Relief sought by the petitioner through the writ petition.

Issue 1: Simultaneous availing of concessional CVD and BCD exemption on imported steam coal

The petitioner, engaged in power generation using imported coal, sought to avail benefits under Notification No. 12/2013-Cus. and Notification No. 64/2012-Cus. The Customs Department contested the simultaneous availing of concessional CVD and BCD exemption. Circular No. 41/2013 clarified that an importer can avail both benefits concurrently. The Court, relying on the circular, held that the petitioner is entitled to the concessional CVD at 2% and BCD exemption on steam coal simultaneously.

Issue 2: Interpretation of Notification No. 12/2013-Cus. and Notification No. 64/2012-Cus.

Notification No. 12/2013-Cus. fixed the effective rate of basic duty on imported steam coal at 2% BCD + 2% VCD, while Notification No. 64/2012-Cus. granted complete BCD exemption to steam coal of Indonesian origin. The petitioner sought to benefit from both notifications, which was initially contested by the Customs Department. However, Circular No. 41/2013 clarified that the importer can indeed avail of the concessional CVD and BCD exemption simultaneously.

Issue 3: Legality of Customs Department's stand on availing concessions

The Customs Department had taken a stand against the petitioner's claim of simultaneous availing of concessional CVD and BCD exemption. However, the Ministry's Circular No. 41/2013 supported the petitioner's position, stating that both benefits can be availed concurrently. The Court, relying on the circular and the government's clarification, ruled in favor of the petitioner, directing the respondents to extend the benefits as per the notifications and circular.

Issue 4: Applicability of Circular No. 41/2013 on the case

Circular No. 41/2013 clarified the applicability of concessional CVD and BCD exemption on imported steam coal. The circular highlighted that an importer can avail of both benefits simultaneously. The Customs Department, in light of the circular, acknowledged that the issue raised by the petitioner was covered. The Court, considering the circular's content, directed the respondents to grant the benefits as per the circular and related notifications.

Issue 5: Relief sought by the petitioner through the writ petition

The petitioner sought relief through a writ petition, requesting the Court to direct the respondents to extend the benefits of Notification No. 12/2012 and Notification No. 46/2011 simultaneously. The Court, after considering the arguments, Circular No. 41/2013, and legal provisions, allowed the writ petition in favor of the petitioner, issuing a writ of mandamus to grant the requested benefits simultaneously. The judgment concluded without imposing any costs on the parties involved.

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