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TMI Blog2008 (1) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... se, we reproduce below the order dated 8-6-2007 passed by the Commissioner (Appeals) :- The appellant, M/s. Britannia Industries Limited, Mumbai filed the present appeal against Order-in-Original No. S/5-Test-DEPB-107(A)04 Gr.VII./CAO No. 3/AS/ACC/06 dated 6-9-2006 passed by the Asstt. Commissioner of Customs, E.P., New Customs House, Mumbai. The brief facts of the case are that the appellant imported Crude Palm Oil (Edible Grade) under the CTH 15111000 and claimed the benefit under the Notification 21/02-Cus. as amended by Notification 26/03 at Serial No. 34. But the benefit of the Notification is subject to the goods having an acid value of 2% or more and the total Carotenoid content (as Beta Carotene) in the range of 500-2500 Mg/Kg. The representative sealed samples were sent for test to Dy. CC and the test report in number 1801/04 VII dated 6-5-04 has revealed that Carotenoid as Beta Carotene was 393.3 Mg/Kg i.e. less than that the prescribed value of the total Carotenoid. Therefore, the appellant was called upon to explain as to why the said Notification benefit should not be denied and the differential duty of Rs. 43,90.845/- along with interest should not be recovered. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 21/02 was amended vide Notification 7/05 dated 4-2-2005, wherein the lower limit of Carotene value was revised from 500 PPM to 250 PPM and the same was merely a clarificatory Notification and hence would relate back to the date of introduction of the condition in respect of a minimum Carotenoid Value. It was however contested by the original authority that the referred to amendment was not merely corrective or clarificatory in nature and therefore does not fall in the category of those having a retrospective application. The assessing authority, in view of the above discussions and relying on numerous case laws denied the benefit of Notification 21/02 dated 1-3-2002 and confirmed the differential duty of Rs. 43,90,845/- along with interest as applicable. Shri Madhur Baya, Advocate appeared for hearing on 22-1-2007 on behalf of the appellant and reiterated the points mentioned in the memorandum of appeal. The appellants plea for retrospective application of the amendment notification is not acceptable in the absence of a clear indication to this effect in the notification, and also, this authority-in-appeal is inclined to endorse the view of the original authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amended Notification, the Central Government only intended to rectify a mistake and, thus, the same will have retrospective effect and retroactive operation. The Hon ble Supreme Court, however, also observed that that they are not oblivious of the fact that in certain situations, the Court having regard to the purport and object sought to be achieved by the legislature may construe the word substitution as an amendment having prospective effect..... 5.2 In the case of Sharman Fabrics v. Commissioner of Central Excise, Ludhiana cited supra, the Tribunal, relying upon the Hon ble Supreme Court s decision in the case of Government of India v. Indian Tobacco Association, has held that the intention of the Government to extend the credit to the garment manufacturers was evident from Rule 9A(3)(b) of Cenvat Credit Rules, 2002 but due to error in drafting Notification No. 35/2003-C.E. (N.T.), dated 10-4-2003, the same precluded the manufacturers of garments from availing the credit of duty on inputs lying in the stock. This rectification of error was undertaken by Notification No. 47/2003-C.E. (N.T.) dated 17-5-2003. Thus, the amending Notification No. 47/2003-C.E. (N.T.) date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teristics of the Crude Palm oil for considering its eligibility to the concessional rate of duty or otherwise. The changed technical parameters cannot obviously be applied to several consignments of the crude palm oil already cleared from the various ports of India during 1-8-2003 to 4-2-2005 availing the concessional rate of duty after satisfying the conditions of the Notfn. 21/02-Cus., dated 1-3-2002 as amended by Notfn. No. 120/03-Cus., dated 1-8-2003 on otherwise at higher rate. Hence, prima facie, we do not find any merits in the plea of the applicants that Notfn. No. 7/05-Cus,. dated 4-2-2005 is retrospective in its operation as the changes brought about by Notfn. No. 7/05-Cus., dated 4-2-2005 are substantive in nature. 7. The applicants have also cited the decision of the Tribunal in the case of Ruchi Soya Industries Ltd. reported in 2006 (193) E.L.T. 499 (Tri. - Bang.) in their support. We have gone through the said judgment. In the said case, the samples of Crude Palm oil were drawn for test from each of the 9 tanks in duplicate. The samples were tested in the Customs Laboratory, Cochin. The Customs Lab report was favourable to the party. In each sample, the test report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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