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TMI Blog2024 (5) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... this Bench s decision in the case of Emami Agro Tech Ltd [ 2024 (3) TMI 86 - CESTAT HYDERABAD] For the sake of brevity, they are not being repeated here. Accordingly, we set aside the impugned order and allow the appeal with consequential benefits, including recredit/refund of SWS paid along with the interest as per law. - MR. R. MURALIDHAR, MEMBER (JUDICIAL) AND MR. A.K. JYOTISHI, MEMBER (TECHNICAL) Shri Narendra Dave, Advocate for the Appellant. Shri A Rangadham, Authorised Representatives for the Respondent. ORDER The appellants have imported Pet Coke for which they have filed Bill of Entry No. 2465483 dated 08.03.2019. They have utilised MEIS scrips in terms of customs Notification No. 24/2015-Customs dated 08.04.2015 towards this clearance. While the BCD is nil and CVD is nil, the appellants were made to debit BCD of Rs. 36,06,500/- towards SWS in MEIS Scrip. The appellants submitted that since EDI system was not allowing them to clear the goods without the payment of SWS they had to pay 10% of Basic Customs Duty as SWS to get their goods cleared. The SWS was paid by debiting the MEIS account. Being aggrieved, the appellants had filed an appeal before the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions 8 and 9 of Notification No. 24/2015 being cited by the AR today they are also considered in this decision. Relevant para 15 is reproduced below: 15. As per Para 3.15 of the FTP and conditions No. 8 9 of the Notification No. 24/2015, the duty so paid on the goods imported using the scrip is allowed to be adjusted for duty drawback. Duties debited in the duty credit scrip are also taken into account while determining the All-Industry Rates and Brand Rate of duty drawback. Similarly, ACD paid on imported goods and/or Central Excise Duty paid on domestic procurement of goods is also allowed to be adjusted as Cenvat credit or duty drawback. Thus, the duty debit on the scrips is taken as duty paid in normal course of clearance for home consumption of any goods. This Bench has held as under: 39. The contention of Revenue is that debit of BCD to the scrip under the said notifications is an alternate method of payment and not an exemption, per se, so as to justify the computation of SWS on notional BCD. We find that such contention of Revenue is not in consonance with the method of calculation of SWS provided in Sec 110(3) of the Finance Act 2018. The Hon ble Apex Court in Somaiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appeal of Revenue. 41. The Hon ble Gujarat High Court in the case of Gujarat Ambuja Exports (supra) has held that the condition of debit of the exempted duties to the scrips is merely procedural as the scrip has value and would not change the nature of benefit from one being of exemption, having been issued in exercise of powers conferred under Sec 25 of the Customs Act . It was also held that merely because the conditions are provided for adjustment of credit in the DEPB scrip, it cannot be stated that either there was no exemption from payment of customs duty or that the Central Government was levying and collecting Customs duty from the importers in the form of adjustment of credit in the DEPB scrips. 42. The aforementioned view of the Hon ble Gujarat High Court has been followed by the Hon ble Bombay High Court in CC (Export) vs Reliance Industries Ltd (supra). 44. Even otherwise, the same issue of non leviability of SWS in case of goods imported under the said notifications with which we are concerned in these proceedings, had fallen for consideration before the Hon ble Division Bench of the Bombay High Court in the Appellant s own case in Writ Petition bearing No. 1447 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue, the Hon ble High Court observed that when, admittedly, BCD is zero, anything multiplied by zero is zero. The Hon ble High Court further held that the earlier circular dt.10.01.2020 is not applicable and placed reliance on the subsequent circular dt.01.02.2022, wherein it is clarified that SWS is applied at a percentage of the aggregate of Customs duty payable on the import of goods and not on the value of the imported goods. The Hon ble High Court categorically held that when BCD is nil, SWS shall also be computed nil. 49. Therefore, in view of discussions and observations hereinabove, we find that goods imported under aforesaid notifications were exempted from BCD and Additional duty of Customs in full and there was no liability to pay BCD by the importer. This fact is an admitted fact. Further, the leviability of SWS is based on levy and collection of BCD, which itself is exempted. There cannot be any collection of SWS on such goods cleared under the aforesaid exemption notifications. 8. The Mumbai Bench in the case of Reliance Industries Ltd., cited supra has gone through the Circular No. 3/2022 dated 01.02.2022 wherein the Board has clarified as under: 2. The matter h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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