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2014 (11) TMI 777 - HC - Central ExciseDTA clearances - concessional rate of duty vide Notification dated 31-3-2003 - Whether the first respondent erred in law while giving prima facie finding that the goods under question are not similar by importing the provisions contained in and the clarifications issued in connection with Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 for similar goods into the provisions of Foreign Trade Development and Regulation Act, 1992 and the Foreign Trade Policy issued thereof - Held that - The concession availed by the appellant is only for clearance of Turbine Wheel in the DTA, whereas the goods exported i.e. Bearing Housing Assembly, were found not similar to the goods cleared in the DTA. This being a prima facie finding of the Tribunal for the purpose of passing an interim order, such a finding cannot be considered to be a ground for raising a substantial question of law. Similarly, as far as the invocation of the extended period and consequently, the finding that the Department had been kept in dark regarding the use of both indigenous and imported raw materials as well, the finding is sought to be challenged on the ground that it is factually incorrect. The substantial questions of law are raised with reference to appreciation of factual aspect and therefore, when the Tribunal, on factual consideration, had come to a conclusion that for the purpose of granting an interim order, the appellant should be directed to deposit 50% of the amount covered under the order passed by the Commissioner and in the absence of any prejudice or financial hardship pleaded, it must be agitated only before the CESTAT. Accordingly, we are not inclined to entertain this appeal, as no question of law, much less the one raised herein, arises for consideration. - Decided against assessee.
Issues:
1. Challenge to the order passed by the Commissioner of Central Excise regarding duty payment on Turbine Wheel Assembly. 2. Appeal against the order of CESTAT directing the appellant to deposit 50% of the amount ordered by the Commissioner. 3. Substantial questions of law raised regarding the similarity of goods, invocation of extended period, and factual considerations. Analysis: 1. The appellant, a 100% Export Oriented Unit engaged in manufacturing and exporting Turbine Wheel Assembly and Bearing Housing, faced a demand for duty payment of &8377; 1,98,16,067/- along with interest and penalty for clearing Turbine Wheel Assembly to the Domestic Tariff Area at concessional rates. The original authority confirmed this demand, leading to the appellant challenging the order before CESTAT. The substantial question of law raised was whether the goods exported and cleared in the DTA were similar, invoking provisions of the Foreign Trade Policy 2004-09. 2. The CESTAT passed an interim order directing the appellant to deposit 50% of the demanded amount. The appellant contended that the findings of CESTAT regarding the similarity of goods and the invocation of the extended period were factually incorrect. However, the High Court held that as the impugned order was interim, the questions of law raised could not be considered at that stage. The appellant's plea to challenge the deposit amount before CESTAT due to financial hardship was also dismissed, emphasizing that the issue must be raised before the appropriate forum. 3. The High Court reasoned that the findings of the Tribunal regarding the similarity of goods and the invocation of the extended period were based on factual considerations for granting an interim order. As no substantial question of law arose for consideration, the appeal was dismissed. The appellant was advised to address any financial hardship concerns regarding the deposit amount directly with CESTAT. The court refrained from expressing an opinion on the request for reduction of the deposit amount, leaving it to the appellant to pursue the remedy through the appropriate application process.
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