9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (2) TMI 398 - AT - CustomsCompliance with N/N. 83/90-Cus or not - claim of the appellant is that they have produced end use certificate though late and claimed the benefit of the said notification - revenue neutrality - Difference of opinion - HELD THAT - Following questions are referred to President for reference to third Member, for resolution in difference of opinion between of us 1. Whether in facts of the case the benefit of exemption under notification No. 83/1990-Cus dated 20.03.1990 should be allowed to the appellant as has been held by the Member (Judicial) or disallowed as held by the Member (Technical)? 2. Whether the demand should be set aside on the ground of revenue neutrality as held by the Member (Judicial) or the demand should be upheld as held by the Member (Technical). 3. Whether the appeal should be allowed as held by Member (Judicial) or dismissed as held by Member (Technical).
Issues Involved:
1. Whether SCN is ab initio untenable for acknowledging the import of Heavy Melting Scrap (HMS) instead of re-rollable scrap. 2. Whether the demand is time-barred due to the Customs' knowledge of the relevant records. 3. Whether late submission of the end-use certificate is acceptable. 4. Whether the requirement of a bond is redundant when the end-use certificate confirms compliance. 5. Whether CVD should be demanded considering revenue neutrality. Issue-wise Detailed Analysis: 1. SCN Ab Initio Untenable: The appellant argued that the Show Cause Notice (SCN) was ab initio untenable as it acknowledged that the license permitted only the import of re-rollable scrap, but the goods imported were HMS scrap. The Tribunal found that the SCN was not beyond its scope as the adjudicating authority was directed to consider if the appellant was entitled to any other notification benefits at the time of importation. Therefore, the argument that the proceedings were beyond the scope of the SCN was not sustainable. 2. Demand Time-Barred: The appellant contended that the demand was time-barred since all relevant records, including the license, were produced before Customs, who erred in assessing the import under Notification No. 203/92. The Tribunal disagreed, stating that the bond executed under Notification No. 203/92-Cus required the appellant to fulfill its conditions, and since these conditions were not met, the bond was still in force. Hence, the demand was not time-barred. 3. Late Submission of End-Use Certificate: The appellant claimed that the late submission of the end-use certificate should be acceptable based on previous CESTAT judgments. The Tribunal noted that the substantial condition of Notification No. 83/90-Cus was the use of imported goods in the manufacture of ingots cleared on payment of duty. The end-use certificate, though submitted late, was considered a procedural lapse, and the appellant was deemed to have complied with the substantial conditions of the notification. Therefore, the benefit of the notification could not be denied based on procedural lapses. 4. Requirement of Bond: The appellant argued that the bond executed under Notification No. 203/92-Cus should suffice for Notification No. 83/90-Cus, as the end-use certificate confirmed compliance. The Tribunal agreed, referencing the case of Meltron Semi Conductors Limited, where it was held that the absence of a bond should not prevent the claim if the end-use certificate was satisfactory. Thus, the bond requirement was considered redundant. 5. CVD and Revenue Neutrality: The appellant argued that CVD should not be demanded as it would be adjustable against admissible Modvat credit, maintaining revenue neutrality. The Tribunal acknowledged that the appellant was entitled to Modvat credit on the CVD paid, making the situation revenue-neutral. Consequently, the demand for CVD was set aside. Separate Judgments: The Member (Judicial) allowed the appeal, granting the benefit of Notification No. 83/90-Cus and recognizing revenue neutrality. The Member (Technical) disagreed, emphasizing strict compliance with the notification's conditions and dismissing the appeal. The difference in opinion led to a reference to the President for resolution by a third Member. Conclusion: The appeal was allowed by way of remand to the adjudicating authority for quantification of the demand, if any, in terms of the above directions. The issues of exemption under Notification No. 83/90-Cus and revenue neutrality were central to the judgment, with differing opinions from the judicial and technical members necessitating further review.
|
