2018 (2) TMI 246 - AT - Customs

Refund of export duty - change in Rate of tax vide Notification - As per N/N. 66/2008-Cus dated 10.5.2008, the effective rate of export duty was 10%. The exports were taken place on 23.5.2008 and 26.5.2008. The said 10% rate of duty was become NIL vide N/N. 77/2008-Cus dated 13.6.2008 - Held that - merely by interpretation, the duty cannot become NIL, which was prevailing as per the statute. If at all, there is any intention of the Govt. not to levy duty during the said intervening period, right course of action is that the Govt. should have issued the retrospective amendment Notification by exercising the power vested under Section 28A of the Customs Act, 1962 - In present case, the Section 28A was not exercised by the Govt. and as per the law prevailing in terms of N/N. 66/2008-Cus, the duty of export on Iron & Steel pipes/tubes was very much chargeable @10%. Appeal dismissed - decided against appellant.

Summary

Issues:
Challenge of assessment of export duty based on change in duty rates and retrospective application of Notification No. 77/2008-Cus.

Analysis:
The case involved a dispute regarding the assessment of export duty on Iron & Steel Pipes/Tubes exported by the appellants. The appellants exported the goods when the duty rate was 10% as per Notification No. 66/2008-Cus, dated 10.5.2008. Subsequently, the duty rate became NIL under Notification No. 77/2008-Cus, dated 13.6.2008. The appellants contended that the duty should be considered retrospectively NIL as per the later notification. The Commissioner (Appeals) had dismissed the appeals, stating that the duty rate prevailing at the time of export was 10%. The appellant challenged this decision.

The appellant argued that the change in duty rate from 10% to NIL should have a retrospective effect as it was by way of substitution. They relied on various judgments to support their contention. However, the Revenue reiterated the findings of the impugned order, emphasizing that the duty was correctly chargeable at 10% during the export period. The Tribunal noted that the duty rate was 10% at the time of export and became NIL only later. The Tribunal highlighted that a mere interpretation cannot change the duty rate that was prevailing as per the statute. The Tribunal pointed out that if the government intended not to levy duty during the intervening period, it should have issued a retrospective amendment notification under Section 28A of the Customs Act, 1962.

The Tribunal further explained Section 28A, which grants the government the power not to recover duty in certain circumstances. In this case, the government did not exercise this power, and as per the prevailing law under Notification No. 66/2008-Cus, the duty of export on Iron & Steel pipes/tubes was indeed chargeable at 10%. The Tribunal also noted that the judgments cited by the appellant were not directly applicable to the present case due to differing facts. The Tribunal emphasized its obligation to follow the rules and notifications issued under the Customs Act, 1962. Consequently, the Tribunal upheld the impugned order, dismissing the appeals.

In conclusion, the Tribunal held that the duty rate applicable at the time of export was 10%, and the subsequent change to NIL did not have a retrospective effect. The Tribunal underscored the importance of following statutory provisions and upheld the assessment of export duty at 10% during the relevant period.