2018 (8) TMI 1027 - AT - Customs

Benefit of N/N. 89/2005- Cus dated 04.10.2005 - Denial of benefit for the reason that at the material time of import clearances of the goods, the DEPB/RAs was neither available nor produced - Held that - There is a basic error in the grounds of the appeal in as much as the Revenue considered the paras of HBP (2004-2009) whereas the period in the present case involved is 2003-2006 - there is no error in the impugned order rather there is a grave error in the grounds of appeal. Hence, the Revenue s appeal does not survive only on this ground itself. Also, the period of obtaining the DEPB license is not relevant. The only requirement is that at the time of payment of duty, the DEPB scrip should be produced for debit therein. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Benefit of exemption under Notification No. 89/2005-Cus dated 04/10/2005
2. Validity of DEPB scrip for duty payment during final assessment

Analysis:
1. The case involved the respondent importing Naphtha and LSFO against 8 bills of entry, provisionally assessed under Notification no. 43/2002-Cus and Notification no. 93/2004-Cus. Subsequently, the assessable value was higher, and the appellant claimed the benefit of Notification no. 89/2005-Cus under DEPB scheme for differential duty. A show cause notice was issued for recovery of duty and interest, culminating in an adjudication order denying the benefit. The Commissioner (A) allowed the appeal, leading to the Revenue's present appeal.

2. The Revenue contended that the DEPB scrip was not produced during provisional assessment, thus the benefit could not be extended during final assessment. However, the respondent argued that the duty paid through DEPB scrips during final assessment was valid and legal, citing relevant provisions and judgments. The Tribunal found errors in the Revenue's appeal grounds, noting that the respondent made the duty payment through DEPB at the time of actual debit during final assessment, as per correct provisions. The Tribunal referenced a judgment stating that DEPB scheme can be treated as duty paid, whether by cash or debit of DEPB scrips. It emphasized that the timing of obtaining the DEPB license is irrelevant, as long as the DEPB scrip is produced for debit during duty payment. Consequently, the Tribunal upheld the impugned order, dismissing the Revenue's appeal.

This detailed analysis covers the issues of exemption benefit under Notification No. 89/2005-Cus and the validity of DEPB scrip for duty payment during final assessment, providing a comprehensive understanding of the legal judgment.