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TMI Blog2015 (11) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... lant have produced a certificate issued by their statutory auditors. Further, it is their contention that the benefit of concessional rate of Basic Customs Duty @ 5% was allowed only on the condition that the imported MOP had been used in the manufacture of fertilizers, therefore, it cannot be said that the imported MOP were not used in the manufacture of fertilizers, but sold in the market. Imported MOP had been used in the manufacture of fertilizers. In any case, it is needless to mention that at any point of time, if the department is able to unearth facts or bring evidences that would lead to an inference that the imported MOP had not been used in the manufacture of fertilizers, on that ground alone the benefit of exemption Notification could be denied alleging suppression or mis-declaration of facts. However, at this stage since the evidence produced by the appellant, has not been rebutted by the revenue by producing contradictory evidences, hence, in our opinion, it is safe to conclude that they have complied with the condition of Notification No.12/2012-CE dated 17.03.2012; accordingly, eligible to the benefit of the said Notification. - Decided in favour of assessee. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir factory at Haldia. He submits that the said manufactured fertilizers attract excise duty @ 1% as they do not avail CENVAT Credit on the raw materials. Further he has submitted that there is no bar in availing concessional rate of duty @ 5% in discharging Basic Customs Duty(BCD) under Notification No.12/2012-CUS dated 17.03.2012 and CVD at nil rate of duty availing the benefit under Notification No.12/2012-CE dated 17.03.2012. It is their contention that as there was difficulty in the EDI system in accepting both the said Notifications together, the Systems Deptt. of CBEC has directed for accepting manual Bill of Entry filed by the respective assesses claiming benefit of both exemption Notifications i.e. 12/2012-Cus. and 12/2012-CE in the same Bill of Entry. He has produced the office noting(pages 294 to 351 of Appeal paper book) recorded in the Customs House, Kolkata, whereunder the officers of the Customs House had opined that the benefit of both the Notifications could be claimed by an assessee and there is no embargo in this regard. Further, he has submitted that section 3(1) of Customs Act, 1962 stipulates that the Additional duty(CVD) leviable on any imported goods shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such condition could be read into the exemption Notification No.12/2012-CE dated 17.03.2012. However, despite there being no requirement of end use certificate, the appellant have duly procured the end use certificate from the statutory auditors, a copy of which is enclosed with the appeal memorandum. It is further contended that at no point of time, the department had disputed that MOP imported by the appellant has not been used in the manufacture of fertilizers but sold as such or used elsewhere. The impugned order is, therefore, liable to be quashed on this ground also. Further, the ld.Advocate challenging the observation of the ld.Commissioiner that they had protested the assessment only in case of one Bill of Entry and not protested against remaining eight Bills of Entry, the ld.Advocate submits that filing of Appeal, after payment of CVD, itself evident that they did not agree with the assessment denying them the benefit of Notification No.12/2012-CE dated 17.03.2012. In support, he has referred to the following judgements of this Tribunal :- 1) CC, Chennai v. Nandana International - 2005(284) ELT 320(Tri-Chennai) 2) Hutchison Max Telecom Pvt.Ltd.v.CCE, Mumbai 2004( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of both the Notifications simultaneously. The ld.Commissioner(Appeals), on the other hand, has categorically observed that the appellant has not furnished any proof to the effect that the imported goods(MOP) were to be used in the manufacture of fertilizers or sold directly in the market. It is his findings that if the said imported goods were not used in the manufacture of fertilizers then obviously the benefit of Notification No.12/2012-CE dated 17.03.2012 would not be applicable. Further, interpreting Section 3(1) of the Customs Tariff Act, 1975, the ld. Commissioner(Appeals) recorded a finding stating that additional duty no doubt would be equal to the rate of Central Excise duty, but in the present case, the appellant failed to produce any certificate/evidence establishing the use of the imported goods in the manufacture of fertilizers; thus, they are not eligible to the benefit of the said Notification. In other words, it is clear that denial of benefit to the said exemption Notification rests only on the issue of lack of evidence to establish that the condition of Notification No.12/2012-CE dated 17.03.2012 has not been satisfied. Vehemently challenging the same, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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