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2014 (12) TMI 730 - AT - CustomsWaiver of pre deposit - Rate of duty on export of hot rolled and cold rolled products - Notification No. 66/2008-Cus, dated 10.5.2008 - Exemption from duty as Notification amended by Notification 77/2008-Cus. Dated 13.6.2008 whereby nil rate of duty has been prescribed - Retrospective effect of notification or prospective - Held that - If the argument of the applicant is accepted, then the increased rate of duty is to be also with retrospective in nature which is not permissible in view of the provisions of Section 16 of the Customs Act. Section 16 of the Customs Act provides the rate of duty and tariff valuation, if any, applicable to the export goods, shall be the rate and valuation in force on the date on which the proper officer makes an order permitting clearance and loading of the goods for export. Applicant relied upon the decision of the Hon ble Supreme Court in the case of WPIL Ltd. (2005 (2) TMI 137 - SUPREME COURT OF INDIA), where in view of the policy of the Government to grant exemption to the parts used in the factory, the subsequent Notification was considered as clarificatory in nature. The facts in the present case are not parallel to the facts of the case before the Hon ble Supreme Court hence the ratio of the above decision is not applicable to the facts of the present case - partial stay granted.
Issues:
1. Interpretation of Notification 66/2008-Cus dated 10.5.2008 and subsequent amendment by Notification 77/2008-Cus dated 13.6.2008. 2. Retrospective vs. Prospective nature of subsequent Notification 77/2008-Cus. 3. Application for waiver of pre-deposit of total duty with interest. Analysis: Issue 1: Interpretation of Notifications The appellant exported flat rolled products of iron or non-alloy steel on 10.5.2008, subject to a 15% export duty as per Notification 66/2008-Cus. However, the appellant argued that Notification 77/2008-Cus, dated 13.6.2008, amended the earlier notification to prescribe a nil rate of duty for hot rolled and cold rolled products. The appellant contended that the substitution in Notification 77/2008 should be treated retrospectively from 10.5.2008, rendering the demand unsustainable. The Revenue, on the other hand, argued that the subsequent notification is prospective, with some rates increased and some decreased, and the increased rates should also apply retrospectively. Issue 2: Retrospective vs. Prospective Nature The Tribunal examined the nature of the subsequent Notification 77/2008-Cus and the implications of changing duty rates. The appellant's argument that the substitution of rates to 'nil' in Notification 77/2008 should be retrospective was tested against the Customs Act, particularly Section 16, which mandates the rate of duty applicable on the date of export clearance. The Tribunal distinguished the present case from the precedent cited by the appellant, emphasizing that the facts differed, and the principle of retrospective application was not applicable. Issue 3: Application for Waiver Considering the arguments and circumstances, the Tribunal found the case unsuitable for a total waiver of duty. The appellant was directed to deposit a specific amount within a stipulated period, with the remaining dues waived upon compliance. The recovery of the waived amount was stayed during the appeal's pendency, with a reporting deadline set for confirmation of compliance. This detailed analysis of the interpretation of notifications, the retrospective nature of subsequent amendments, and the decision on the application for waiver provides a comprehensive overview of the legal judgment delivered by the Appellate Tribunal CESTAT MUMBAI.
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