2004 (11) TMI 201 - AT - Customs

Summary

Issues Involved:
1. Determination of DEPB credit rate for Vitamin Mix.
2. Applicability of Adani Exports Ltd.'s case to Vishal Exports Overseas Ltd.
3. Compliance with principles of natural justice.
4. Validity of revised DEPB credit claims.
5. Impact of amendments to Notification No. 104/95-Cus.

Issue-Wise Detailed Analysis:

1. Determination of DEPB Credit Rate for Vitamin Mix:
The respondents exported shrimps under the DEPB Scheme and claimed DEPB credit for Vitamin Mix at a rate higher than what was allowed by the department. The department allowed credit at US $ 8.2 per kg, while the respondents claimed credit up to US $ 36 per kg, citing similar allowances to other exporters. The Assistant Commissioner affirmed the lower rate, leading to an appeal by the respondents.

2. Applicability of Adani Exports Ltd.'s Case to Vishal Exports Overseas Ltd.:
The respondents argued their case was analogous to Adani Exports Ltd., where a higher credit rate was allowed. The Commissioner (Appeals) initially remanded the case for re-examination, distinguishing it from Adani's case based on the initial credit claim and procedural discrepancies. Upon re-examination, the Assistant Commissioner maintained the lower rate, leading to another appeal. The lower appellate authority later allowed the higher rate provisionally, aligning with Adani's case, but this was contested by the department.

3. Compliance with Principles of Natural Justice:
The Commissioner (Appeals) identified a violation of natural justice principles in the initial order as the respondents were neither given a show-cause notice nor a personal hearing. This procedural lapse necessitated a remand for de novo adjudication.

4. Validity of Revised DEPB Credit Claims:
The respondents initially claimed credit at US $ 12.5 to 14.75 per kg but revised their claim to US $ 36 per kg during adjudication, based on Adani's case. The department contested this revision, arguing the initial claim should bind the respondents. The lower appellate authority's decision to allow the revised claim was based on the DEPB Scheme, which did not mandate declaring the unit price under the unamended Notification No. 104/95-Cus.

5. Impact of Amendments to Notification No. 104/95-Cus.:
The department argued that post-amendment, the respondents were required to declare the unit price and provide supporting evidence. However, the exports occurred before the amendment, rendering this argument irrelevant. The Tribunal held that the unamended provisions did not mandate declaring the unit price, but the respondents' fluctuating claims needed examination.

Conclusion:
The Tribunal concluded that Adani's case was not a precedent for Vishal's due to factual distinctions established in the remand order, which became final and unchallenged. The principle of res judicata applied, preventing re-litigation of the same issue. The Tribunal rejected the lower appellate authority's provisional credit allowance and remanded the case to the original authority to examine the respondents' initial credit claim on its merits, ensuring compliance with procedural fairness and providing an opportunity for the respondents to substantiate their claim.