2012 (11) TMI 968 - AT - Customs

Import under DEPB Scheme import of non-calcined Petroleum Coke denial of benefits of Notification No. 89/2005-Cus. Held that - Commodity Coke had been made a part of original public notice - Commissioner while exercising the powers, under the notification used the word substituted and therefore it can be held that the newly added import commodity namely Coke had been a part of original Public Notice No. 1/2002-Cus., dated 27-11-2002 - Inevitably it was intended to rectify the mistake and thus have given a retrospective effect legitimizing all import of Coke including those affected prior to 27-7-2009 - duty debited/paid at the time of respective provisional assessment in DEPB/TRA/cash is held valid and the benefit of duty exemption under DEPB Scheme under Notification No. 89/2005-Cus., dated 4-10-2005 to be granted

Summary

Issues:
Import of Non-calcined Petroleum Coke at Navlakhi Port under DEPB Scheme - Interpretation of Notification No. 89/2005-Cus. - Validity of amendment in Public Notice - Retroactive effect of amendment.

Analysis:
The appeal involved a dispute regarding the import of Non-calcined Petroleum Coke at Navlakhi Port under the Duty Entitlement Pass Book (DEPB) Scheme. The issue arose as the port was not initially included for importing 'Coke' as per Notification No. 89/2005-Cus. The Commissioner issued a show cause notice questioning the eligibility for benefits under the said notification. The respondents argued that the absence of a public notice did not preclude the deemed applicability of the notification for Navlakhi Port, citing historical clearances and amendments to Public Notices extending DEPB Scheme benefits to Navlakhi Port.

The Revenue contended that the amendment in Public Notice No. 1/2002-Customs, adding 'Coke' as an eligible import under DEPB at Navlakhi Port, was erroneously interpreted by the Commissioner (Appeals). They argued that the substitution in the amendment had retrospective effect from the original notice date, relying on legal precedents. The main issue revolved around whether the import of coke at Navlakhi Port under DEPB was permissible, considering the subsequent amendment including 'Coke' in the list of specified goods for DEPB Scheme at the port.

The Tribunal analyzed the retrospective effect of the amendment, referencing the Supreme Court's judgment in a similar case. They found that the word 'substituted' in the amendment indicated the inclusion of 'Coke' as part of the original notice, legitimizing all coke imports, even those before the amendment date. Consequently, they upheld the validity of duty debited under DEPB at the time of provisional assessment and granted the benefit of duty exemption under Notification No. 89/2005-Cus.

In conclusion, the Tribunal rejected the Revenue's appeal, affirming the Commissioner (Appeals) Customs, Jamnagar's order with any consequential relief. The judgment emphasized the retrospective effect of the amendment and the application of legal principles to resolve the dispute, aligning with established precedents.

This detailed analysis highlights the key legal arguments, interpretations of notifications, and the application of legal principles in resolving the issues raised in the appeal before the Appellate Tribunal CESTAT, AHMEDABAD.