2019 (5) TMI 391 - AT - Customs

Finalization of provisional assessment - assessment of CVD - Revenue is in appeal on the ground that the importers are not entitled for the benefit of Sl.No.172A of the Notification No.12/2012-CE dt.17.03.2012 whereas the importers are in appeal on the ground that they were not given the benefit reduced CVD in terms of Notification No.1/2011-CE dt.1.03.2011 - HELD THAT - There is no ambiguity in the notification which has been relied upon by the importers. It is case based on facts and test conducted on these imported goods and no contrary test report produced by the Revenue against the test report of CIPET and the Commissioner (Appeals) has rightly allowed the benefit of Sl.No.172A of the Notification No.12/2012-CE dt.17.03.2012 to the importers of the imported goods in question. Also earlier consignment imported by the importers, the benefit of notification was granted on the basis of test report given by the CIPET. Therefore, there is no infirmity in the impugned orders quo allowing to the importers the benefit of Sl.No.172A of the Notification No.12/2012-CE dt.17.03.2012. Therefore, the Revenue appeals have no merit and the same are dismissed. CENVAT Credit - inputs/input service - benefit of reduced duty to pay 2% - HELD THAT - The said issue has not been examined by the Commissioner (Appeals). Therefore, for the said limited purpose, the appeals are remanded back to the Commissioner (Appeals) to decide the issue on the basis of records produced by the importers - Appeal allowed by way of remand.

Summary

Issues:
Delay in filing appeals, Provisional assessment of imported goods, Benefit of Notification No.12/2012-CE, Test reports by CIPET, Benefit of reduced CVD, Ambiguity in test reports, Interpretation of notification, Benefit of doubt principle, Previous benefit granted based on test reports, Entitlement to reduced duty.

Delay in filing appeals:
The Revenue filed applications for condonation of delay in filing appeals due to initially filing one appeal instead of separate appeals against each impugned order. The Tribunal, considering the reasons for delay satisfactory, allowed the condonation of delay in filing the appeals.

Provisional assessment of imported goods:
Importers filed bills of entry for clearance of recycled polyester staple fiber made from plastic waste, claiming benefits under a specific notification. The goods were assessed provisionally due to lack of chemical analysis. Test reports by CIPET were inconclusive initially but later confirmed the goods as regenerated staple fiber. The adjudicating authority denied the benefit of the notification, leading to appeals.

Benefit of Notification No.12/2012-CE:
The importers contended for the benefit of a specific notification, which was initially denied by the adjudicating authority but allowed by the Commissioner (Appeals) based on test reports and the nature of the imported goods. The Revenue appealed against this decision.

Test reports by CIPET:
The ambiguity in test reports provided by CIPET was a crucial point of contention. The Revenue argued that the reports were inconclusive, while the importers claimed the reports were conclusive and relied upon them to support their case.

Benefit of reduced CVD:
The importers argued for reduced CVD based on not availing credits on inputs and input services, citing specific notifications. This contention was not considered by the Commissioner (Appeals), leading to appeals on this issue.

Ambiguity in test reports and interpretation of notification:
The Revenue argued that ambiguity in the notification should benefit them, as per a Supreme Court judgment. However, the Tribunal found no ambiguity in the notification relied upon by the importers, emphasizing the factual basis of the case and the conclusive test reports from CIPET.

Entitlement to reduced duty:
The importers claimed entitlement to reduced duty based on their non-availment of credits, citing relevant case law. The Tribunal remanded the issue back to the Commissioner (Appeals) for further examination based on the records and case law presented by the importers.

Conclusion:
The Tribunal dismissed the Revenue's appeals, finding no merit in their arguments. The importers' appeals were allowed for remand to the Commissioner (Appeals) to decide on the benefit of reduced duty. The judgment highlighted the reliance on conclusive test reports, lack of ambiguity in the notification, and the need for further examination on the entitlement to reduced duty based on non-availment of credits.