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TMI Blog2016 (9) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of the Appellants. Dr.Samir Chakraborty submitted that main Appellant imported three consignments of processed cloves as detailed in para-2 of the Order-in-Original dated 28.02.2007 and claimed the benefit of Notification No.73/95-CUS(NT) dated 07.12.2005 prescribing The Customs Tariff (Determination of Origin of Goods under Agreement on SAARC Preferential Trading Arrangements) Rules, 1995 (SAPTA Rules) read with Notification No.105/99-CUS dated 10.08.1999, as amended. That Adjudicating authority has denied the benefit of Notification No.105/99-CUS on the grounds that imported cloves are not of Bangladesh origin and have been mis-declared as Processed Clovs by showing abnormally high value addition. That Appellant submitted the required certificates with respect to Bangladesh origin of cloves from prescribed authority in Bangladesh as per SAPTA Rules and that Revenue has not alleged that the said certificates of origin are forged. That so long as the certificate of origin continue to remain in force department cannot deny the benefit of Notification No.105/99-Cus. Learned Sr.Advocate made the Bench go through the certificates of origin issued by the appropriate authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscation of goods under Section 111(n) & 111(o) of the Customs Act, 1962 is attracted and no penalty is imposable upon the appellants. 3. Shri K.C.Jena, ADC(AR) appearing on behalf of the Revenue argued that processes of cleaning, grading, packing etc. does not amount to processing of cloves. That processed cloves will be only these cloves from which oil has been extracted. That even the Appellant has accepted activities of drying, grading and packing cannot lead to value addition of 69%. He made the Bench go through Q.No.22 of the statement dated 01.06.2005 of Shri Nirmal Kumar Bhura, Director of the main appellant. That Chairman of Spices Board of India vide letter dated 12.07.2005 has opined that processes carried out by the supplier will not make the cloves as processed cloves which are called exhausted cloves or spent cloves and will also not make the goods of Bangledesh origin. Learned AR thus strongly defended the Order-in-Original dated 28.02.2007 passed by the Adjudicating authority. 4. Heard both sides and perused the records of the case. The issue involved in the present appeal is whether the main appellant is eligible to avail partial exemption under Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the Revenue to reject the assessee s case for nil rate of duty on the said item, particularly when the certificate says so. In the judgment of this Court in the case of Tullow India Operations Ltd. (supra), this Court held that essentiality certificate must be treated as a proof of fulfilment of the eligibility conditions by the importer for obtaining the benefit of the exemption notification. We may add that, the essentiality certificate is also a proof that an item like Captive Power Plant in a given case could be treated as a capital goods for the fertilizer project. It would depend upon the facts of each case. If a project is to be installed in an area where there is shortage of electricity supply and if the project needs continuous flow of electricity and if that project is approved by the Sponsoring Ministry saying that such supply is needed then the Revenue cannot go behind such certificate and deny the benefit of exemption from payment of duty or deny nil rate of duty. To the said effect is the judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. (supra) in which it was held that the object behind the specific Heading 98.01 in Customs Tariff Act, 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court in normal circumstances such a certificate is to be acted upon. The Hon'ble Supreme Court directed this Tribunal to examine the various material relied on by the Revenue to contest the appellant s claim for exemption. We perused of the impugned order which was passed after the specific direction of this Tribunal to approach the competent authority for re-examining all the facts, material, evidence, furnished by both the sides to certify the installed capacity. As per the direction of this Tribunal the Director of Industries was addressed by the Adjudicating Authority on 5-9-2002 along with copies of 11 documents (Para 12 of the impugned order) which are relied upon by the Revenue to contest the correctness of certificate issued by the competent authority. In response, the Commissioner of Industries vide his letter dated 17-6-2003 categorically stated that the installed capacity of the appellant unit is 1,98,000 T.P.A. during the impugned period. He also observed that with reference to the various evidences submitted by the Revenue his office is in agreement with the clarification given by the appellant that their annual installed capacity was 1,98,000 M.T. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sunil Doletram Chhabria, Shri C.J.Jose, Dr.J.Chakraborty and Shri Pratab Chakroborty as per para-18 of Appellants reply dated 05.12.2005 to the show cause notice dated 26.08.2005. These facts have been duly reflected in the submissions of the main appellant in the Order-in-Original dated 28.02.2007 but the request of cross examination of the witnesses has been conveniently avoided by the Adjudicating Authority and no observations are given as to why request of the appellant for cross-examination is not acceptable. In the absence of cross examination the evidentiary value of the relied upon witnesses is lost. Secondly, Shri Doletram T.Chhabria is also an exporter and importer of spices whose business is threatened by concessional rate on cloves under SAPTA Rules. Being an interested party his statement otherwise also can also not be relied upon and used against the Appellants. It is observed from the SAPTA Rules that the concessions to member countries are as a result of commitments amongst the SAARC countries for enhancing, inter alia, the trade between the members contracting countries. Great trust is imposed under SAPTA Rules upon the designated authority of Govt. of the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced. In support of this contention, the learned counsel has relied on State of Madhya Pradesh v. Bhailal Bhai, Firm A.T.B. Mehtab Majid and Company v. State of Madras and State of Rajasthan v. Ghasiram Mangilal. On the other hand, Mr.Goswami, learned counsel for the State of Assam, contends that there is no discrimination between onion imported from outside and onion grown in the State of Assam inasmuch as both are subjected to levy of sales tax. The argument in this connection has centred round the definition of the word processed . It is urged by the learned counsel for the petitioner that onion cannot be processed inasmuch as it is not subjected to any mechanical process after it has been removed from the earth. The word process used as transitive word means according to Webster s New International Dictionary to prepare by or subject to treatment or process . In Nilgri Ceylon Tea Co. v. State of Bombay, Shah, J. as he then was, observed as follows: "The expression process has not been defined in the Act. According to Webster s Dictionary process means to subject to some special process or treatment, to subject (especially raw material) to a process of manufacture, developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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