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2013 (9) TMI 829 - HC - CustomsBenefit of Duty Exemption Notifications No.46/2011Cus and Notification No.12/2012-Cus Held that - Having regard to the fact that the controversy, which was the subject matter of this petition, had already been referred by the respondent revenue to the Central Board of Excise and Customs to whom the petitioner had also submitted its representation dated 20 April 2013, interests of justice would be served, if during pendency of the petition or till the decision of the Central Board of Excise and Customs, whichever was earlier, the respondent authority shall permit the petitioner to avail of benefits of both the exemption notifications, subject to the condition that the petitioner will give a bank guarantee for 20% of the differential duty and bond for the balance amount as sought for by the respondent in the letter dated 8 July 2013. However, this was subject to the petitioner otherwise complying with the conditions, if any, of both the exemption Notifications. The CESTAT had consistently taken a stand that in the absence of any bar in the notification itself, it was open to an assessee to take benefit of more than one notification - This was so held in the matters of Hindustan Lever Ltd. vs. Collector 1989 (2) TMI 195 - CEGAT, NEW DELHI and SUPER CASSETTES INDUSTRIES LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI 2006 (8) TMI 192 - SUPREME COURT OF INDIA - benefit of more than one exemption notification was extended.
Issues:
Interpretation of two customs duty exemption notifications for coal imported from Indonesia, denial of simultaneous benefit under both notifications, entitlement of assessee to avail more than one exemption notification, opposition to interim relief based on Notification No.46/2011, consideration of statutory appellate procedure, pending adjudication order by Deputy Commissioner of Customs, representation to Central Board of Excise and Customs, consistency in allowing benefit of more than one notification by Customs Excise and Service Tax Tribunal and Apex Court. Analysis: The judgment pertains to the interpretation of two customs duty exemption notifications concerning coal imported from Indonesia. The petitioner claims entitlement to benefits under Notification No.46/2011Cus dated 1 June 2011 and No.12/2012-Cus dated 17 March 2012, arguing they are not mutually exclusive. However, the respondents have denied simultaneous benefit under both notifications, restricting it to only one. The impugned communication informed the petitioner of this decision, which was referred to the Central Board of Excise and Customs for consideration. The petitioner contends that various decisions support the position that an assessee can avail of more than one exemption notification unless expressly prohibited. The respondent-authority opposes interim relief, asserting that the petitioner is entitled only to Notification No.46/2011 dated 1 June 2011 for coal imported from Indonesia. The Deputy Commissioner of Customs supports this stance in an affidavit. Despite the usual reluctance to entertain a petition before the completion of the adjudication process, the court notes that the issue of simultaneous availment of two notifications is pending before the Central Board of Excise and Customs. Previous decisions by the Customs Excise and Service Tax Tribunal and the Apex Court have allowed the benefit of multiple notifications in the absence of any explicit prohibition. Considering the matter referred to the Central Board of Excise and Customs and the petitioner's representation, the court deems it just to permit the petitioner to avail benefits under both exemption notifications during the pendency of the petition or until the Central Board's decision, subject to providing the required bank guarantee and bond. This allowance is conditional upon the petitioner complying with any additional conditions specified in the exemption notifications.
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