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TMI Blog1985 (1) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962 for disposal as if they were appeals filed before the Tribunal. 2. Since all the matters arise out of the aforesaid consolidated show cause notice, this order disposes of all the matters. 3. The facts of the case, as set out in the show cause notice, in brief, are that the Respondents imported consignments of coconut oil on which the Customs authorities charged additional countervailing duty of Customs corresponding to the excise duty leviable on vegetable non-essential oils under item No. 12 of the First Schedule to the Central Excises and Salt Act, 1944 (CET. for short . The Respondents cleared the consignments on payment of the duty so assessed. Later on, they filed applications for refund of the additional duty un the ground that the coconut oil imported by them was unprocessed oil and, therefore, was exempt from payment of additional duty by virtue of Central Excise Notification No. 33/63, dated 1-3-1963. The Assistant Collector rejected the refund claims filed by M/s. Kapadia Trading Co., M/s. Godhwani Bros. and M/s. Sangam Oil Mills as hit by limitation under Section 27(1) of the Customs Act, 1962. The claims filed by the other Respondents were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills, that the statement made in the show cause notice that the refund claim was time-barred was not correct inasmuch as the duty was paid on 28-11-1977 and the refund claim was filed on 25-4-1978, that is, within the permissible period of six months from the date of payment of duty. With respect to the matters pertaining to M/s. Kapadia Trading Corporation and M/s. Godhwani Bros., he submitted that the claims were barred by time as they had been filed beyond the prescribed period of six months of the date of payment of duty. (b) The dispute in so far as the merits were concerned, hinged on the interpretation of Central Excise Notification No. 33/63, dated 1-3-1963, more specifically Clause (a) there of read with the explanation which defined processed vegetable non-essential oil for the purpose of the Notification. According to the Notification, processed oil was not exempted from duty. For the purpose of the Notification, processed oil was defined as one which had undergone, subsequent to its extraction, any one or more of three specified processes, namely, treatment with an alkali or acid, bleaching and deodorization. He drew our attention to the technical opinion No. 52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions set out in the notification. For this, the Departmental Representative relied upon the decision of the Madras High Court in the case of M/s. Varadalakshmi Mills Limited Another v. The Assistant Collector of Central Excise, Madurai Others [1981 ECR 265-D (Madras)]. (d) The Appellate Collector had exceeded his jurisdiction in those cases where he ignored the fact that the refund claims had been filed beyond the time-limit prescribed in Section 27(1) of the Customs Act, 1962. He also exceeded his jurisdiction in going into the merits of the cases except in the Godrej case, since the Assistant Collector had rejected the claims either as hit by limitation or as unsubstantiated. The Appellate Collector should have either upheld those orders or, in those cases where the claims were rejected as unsubstantiated, remanded the matters back to the Assistant Collector for his fresh determination. (c) In the alternative, the D.R. stated, Notification No. 33/63 was a conditional notification, capable of fulfilment only by oil produced indigenously and, therefore, not applicable to imported oil. 5. (a) Appearing on behalf of M/s. Sangam Oil Mills (Order-in-Appeal No. S/49-1572/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as unable to disprove the importers contention and the benefit of doubt was extended to the importer. The Government s decision was reported in 1982 ECR 659. Though that decision was not binding, it had persuasive value. (a) Shri R. Ravindran, Legal Manager, appearing for M/s. Godrej Soaps Ltd., adopted Shri Nankani s arguments. In addition, he stated that the Deputy Chief Chemist s technical opinion clearly stated that crude coconut oil could be water-white implying that it did not always have to necessarily be bleached. In the trade, white and yellow oil-were known as crude coconut oil. (b) In the alternative, Shri Ravindran submitted, even if the imported oil was taken to be processed oil , it was only partially processed. Applying the ratio of the Supreme Court decision in 1977 (1) E.L.T. (J 197), Notification No. 33/63 would be applicable and the oil would have to be treated as unprocessed. (c) If the imported oil had been produced locally, it would not have attracted Central Excise duty applying the ratio of the Supreme Court s decision. The imported oil would, therefore, not have also attracted countervailing duty. 7. (a) Appearing on behalf of M/s. Godhwani Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, however, ignored the said limitation on the ground that the collection of additional duty of Customs was without the authority of law and, therefore, the limitation under the Customs Act would not apply but that the Indian Limitation Act would apply. In the present cases, indisputably, coconut oil as a vegetable non-essential oil was an excisable under Item No. 12 of the Central Excise Tariff Schedule. Of course, unprocessed coconut oil conforming to the requirements of Notification No. 33/63 was exempt from excise duty and imported unprocessed coconut oil would have, therefore, attracted the exemption. Determination of the question, whethern a given consignment of imported coconut oil was processed or unprocessed and was, therefore, dutiable or exempted, was, again, indisputably, a question to be determined by the proper officer of Customs in his jurisdiction. The decision arrived at may or may not be right but there can be no doubt that the determination was within jurisdiction. 11. The question whether claims for refund of Customs duty preferred before Customs authorities are governed by the limitation laid down in Section 27(1) of the Customs Act has been settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview of the said Order-in-Appeal. The Departmental Representative could not throw any light on the Counsel s objection on this score. In the circumstances, we agree with Shri Balani that no proceedings to review the Order-in-Appeal in respect of Godhwani Brothers are before us. 13. In so far as the merits of the dispute are concerned, the technical opinion furnished on 22-9-1979 by the Deputy Chief Chemist is revealing. He says that freshly expressed coconut oil can be water-white and of very low free fatty acid content. Only a total absence of odour in the oil could indicate beyond doubt that the oil had been deodorized. The opinion further states that white oil with a free acid content of less than 1% is possible if it is expressed from good well dried copra dried to 6% moisture and expressed in clean equipment. While, the Indian Standards Institution has differentiated between refined coconut oil and unrefined coconut oil, it is not possible to demarcate between processed coconut oil and unprocessed coconut oil for the purpose of the Central Excise Notification. The Deputy Chief Chemist concludes by saying that in the absence of reliable evidence to show that the oil in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been suitably challenged after giving due opportunity to the appellants. In the absence of any such challenge and in the absence of any evidence to show that the oil was processed within the meaning of Central Excise Notification, and in the context of the Deputy Chief Chemist s opinion, we consider it proper that the benefit should go to the respondents and that the exemption from additional (countervailing) duty of Customs should be extended to the concerned respondents. 15. Summing up- (i) Order-in-Appeal No. S/49-443/79R, dated 11-12-79 relating to M/s. Kapadia Trading Co., is set aside, the appeal is allowed and the Assistant Collector s order restored. (ii) Order-in-Appeal No. S/49-1608/80 R, dated 8-8-1980, relating to M/s. Godrej Soaps Ltd., Order-in-Appeal No. S/49-1453/79R, dated 11-12-1979 relating to Gujarat Trading Co., and Order-in-Appeal No. S/49-1572/79R, dated 11-12-1979 relating to M/s. Sangam Oil Mills are upheld and the appeals rejected. 16. No orders arc required to be passed in respect of Order-in-Appeal No. S/49-533/80R, dated 9-5-1980 relating to M/s. Godhwani Brothers for the reasons we have already set out. - - TaxTMI - TMITax - Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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