9911796707
TMI Blog2005 (5) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... is not clarificatory as it was not issued within one year of the parent notification. While arriving at the conclusion, she has relied on sub-section (2A) of Section 25 of the Customs Act, 1962. 3.The facts in brief as follows : - The appellants had imported goods described as component of bipolar electrolisers and cell elements based on ion-exchange membrane cell technology and cleared the same on payment of duty under protest. Later, they filed a refund claim for an amount of Rs. 1,69,80,271/- claiming benefit of Customs Notification No. 21/2002 elated 1-3-2002 (Sl. No. 285). The above notification provides exemption for the goods for modernization of an existing caustic soda unit subject to fulfilment of condition No 62. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on a plethora of case laws strenuously argued that in the circumstances of the case, the amending notification should be given retrospective effect. He relied on the following case laws: - (1) WPIL Ltd. v. CCE [2005 (181) E.L.T. 359 (S.C.)] (2) Johnson and Johnson Ltd. v. CCE [1997 (92) E.L.T. 23 (S.C.)] (3) CC v. Bharat Heavy Electricals Ltd. [1996 (82) E.L.T. A40 (S.C.)] (4) CC v. Bharat Heavy Electricals Ltd. [1984 (17) E.L.T. 525 (T)] (5) CCE v. North Eastern Tobacco Co. Ltd. [2002 (146) E.L.T. 490 (S.C.)] (6) Hindustan Polymers Co. Ltd. v. CCE [1999 (106) E.L.T. 12 (S.C.)] (7) Gujarat State Fertilisers Co. v. CCE [1997 (91) E.L.T. 3 (S.C.)]. 5.The learned JCDR appearing for the Revenue sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of worn out membranes in an industrial plant based on membrane technology. A reading of the above entry indicates that the notification will not be applicable if the goods are required for a new unit. In the instant case, even though originally the goods were meant for the existing caustic soda unit Kovvur, they could not use as they had closed the unit due to the Orders of Andhra Pradesh Pollution Control Board. The amending Notification No. 161/2003-Cus. reads as follows :- In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caustic soda unit using membrane cell technology or setting up of a new caustic unit soda using membrane cell technology. The contention of the appellants is that this notification is clarificatory in nature and it should be given retrospective effect from 1-3-2002. On a very careful consideration of the matter, we find that there is no ambiguity in the wordings in portion at Sl. No. 285 of the Notification No. 21/2002-Cus., dt. 1-3-2002. Under these circumstances, we cannot hold that the amending notification is clarificatory in nature. Moreover, the observations made by the Commissioner (Appeals) on the basis of Section 25(2A) are very relevant. The decision of the Apex Court in case of Priya Blue Industries Ltd. v. Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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