2008 (10) TMI 95 - HC - Customs

Petitioner imported Zinc skimming, on which demand of additional customs duty equal to excise duty (CVD) was raised petitioner submit that Commissioner in its earlier order has held that Zinc skimming and dross are not excisable - Secretary, Ministry of Finance is directed, to look into the conduct of respondent in passing order which was inconsistent with his previous as well as subsequent order and take such action as may be considered appropriate petition is allowed

Summary

Issues:
Quashing of order dated 12-3-2008 Annexure-P-13 regarding additional customs duty on imported Zinc skimming.

Analysis:
1. The petitioner contested the demand of additional customs duty equal to excise duty (CVD) on imported Zinc skimming by relying on various Supreme Court judgments. The appeal before Commissioner (Appeals) was dismissed, leading to the current petition seeking the quashing of the order dated 12-3-2008 Annexure-P-13.

2. The petitioner raised grievances against the dismissal of the appeal, citing instances where different views were taken by respondent No. 2 in similar cases. The petitioner highlighted specific orders where CVD was held not leviable on the import of Zinc skimming by different authorities, including the Tribunal's dismissal of the Revenue's appeal on the same grounds.

3. The respondent argued that the item imported by the petitioner was Zinc Skimming, distinct from the items mentioned in the judgments relied upon by the petitioner. However, the petitioner provided evidence of settled legal positions where CVD was not leviable on Zinc skimming and dross, which was consistent with the Tribunal's decision.

4. The Tribunal's decision emphasized that where excise duty cannot be levied on goods, no countervailing duty can be imposed. The Tribunal upheld the claim of the assessee based on the principle that if excise duty is not applicable, no countervailing duty or additional duty can be levied, supporting the petitioner's case.

5. The Tribunal's decision led to the allowance of the petition and the quashing of the impugned order dated 12-3-2008 Annexure-P-13. Additionally, directions were issued to the Secretary, Ministry of Finance, to investigate the inconsistent conduct of respondent No. 2 in passing orders and take appropriate action.

This comprehensive analysis outlines the legal proceedings, arguments, and decisions leading to the quashing of the order regarding the additional customs duty on imported Zinc skimming, based on established legal principles and precedents cited during the case.