9911796707
TMI Blog2024 (7) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout examining anything further and without taking any material on record merely on the contention made by the other side.' The impugned order passed by the Commissioner (Appeals) cannot be sustained and therefore, the same is hereby quashed and set aside and it is held that the petitioners are entitled for exemption for additional customs duty for aluminum waste and scrap under Serial No. 220 of N/N. 12/2012-CE dated 17th March, 2012. Petition allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1,2 : Mr Amal Dave for Mr Paresh M Dave (260) For the Respondent : Mr Pratik Khubchandani For Mr Dhaval Vyas For the Respondent(s) No. 2,3 : Ayaan A Patel (8900) For the Respondent(s) No. 1 : Rule Served. ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. These petitions are filed challenging the common Order-in-Appeal dated 31st March, 2015 passed by the Commissioner of Customs (Appeals), Ahmedabad in File No. S/49-15/CUS/CA-2/AHD/2014-15 and File No. S/49-16/CUS/CA-2/AHD/2014-15. Therefore, both the appeals were heard together and are being disposed of by this common order. 2. Heard learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g from their factory aluminum utensils produced out of Aluminum Circles. 4.4 The said company claimed exemption of CVD under the above-referred Notification for a consignment of aluminum waste and scrap imported by it in February, 2011, however the exemption was denied by respondent No. 3 and therefore, the said company filed appeal before respondent No. 2 who allowed the appeal vide order dated 02nd September, 2011 and allowed exemption of the above Notification. The said order passed by the respondent No. 2 has been accepted by the Customs Department and it becomes final. However, for subsequent consignments of the same goods imported by the said M/s. Ry. Midas Metacast Pvt. Ltd., exemption was again denied by the respondent No. 3 and therefore, again appeal was filed by the said company before the respondent No. 2, who passed order dated 30th January, 2012 and again exemption of the above Notification was granted. The said order has also been accepted by the Customs Department, and it has become final and conclusive. 4.5 It appears that several other orders have also been passed in favour of the said company, whereby refund of substantial amounts which was recovered from them as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the cases challenging the adjudication order made in case of M/s. Ry. Midas Metacast Pvt. Ltd. and the adjudication order dated 25th November, 2014 made in case of the Petitioners. The grounds taken in both the appeals were similar, and it was contended that exemption was not admissible in view of certain facts which were missed while deciding cases in past. 4.9 So far as the case of the petitioners is concerned, a detailed written submission was filed by the Petitioner firm on 30th March, 2015 when the hearing of the Revenue s appeal took place before the respondent No. 2. 4.10 In the meanwhile, it appears that similar appeal filed by the Revenue against M/s. Ry. Midas Metacast Pvt. Ltd. was already heard by respondent No. 2 on 05th March, 2015 and the respondent No. 2 had already passed Order-in-Appeal dated 25th March, 2015 holding that exemption of the above Notification was not admissible to the importer i.e. M/s. Ry. Midas Metacast Pvt. Ltd. and the appeal filed by the Revenue was allowed. 4.11 Hearing the case of the petitioner on 30th March, 2015 was merely a formality because the respondent No. 2 had already decided Revenue s appeal in case of M/s. Ry. Midas Metacast Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to recovery of money in guise of duty from the petitioner firm. When the adjudicating authority viz. Deputy Commissioner of Customs has granted benefit of Notification No. 12/2012-CE and in absence of any challenge to such order, respondent No. 3 could not have denied the exemption benefit to the petitioner and the Commissioner (Appeals) ought to have taken into consideration such aspect without considering that new facts have been brought on record whereas there are no new facts. The respondent No. 3 allowed the benefit of Notification No. 12/2012-CE on the basis that the case of the petitioner was similar to that of M/s. Ry. Midas Metacast Pvt. Ltd. (supra) which has now been decided by this Court. 6.3 While allowing the appeal filed by the revenue, the Commissioner (Appeals) has committed jurisdictional error in holding that exemption would be available only if aluminum waste and scrap was used for manufacture of final products viz. unwrought aluminum sheets/plates. However, there is no such condition in the Notification that the final product must be aluminum sheets/plates nor there is any condition in the Notification that unwrought aluminum sheets and plates produced out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inum Waste and Scrap which were to be used for the manufacture and clearance of unwrought Aluminum Plates and Sheets. I say and submit that the final product which is manufactured by the petitioners herein is Aluminum Circle which is obtained after further processing the Aluminum Plates and Sheets. I say and submit that at this juncture, it would be pertinent to also highlight the manufacturing process of the petitioners which has been provided by them to the authorities. A bare perusal of the same at Annexure-A to the memo of the petition at Page No. 17, highlight the manufacturing process. It is most respectfully submitted that the raw material for which the exemption is granted is Aluminum Scrap. It is submitted that the same is processed and melted in the furnaces and poured into molding dies of square shed to aluminum plate. Thereafter, the plate are sent for hot rolling and the same are thereafter cut into required sizes and further cold rolled to get required finish. It is submitted thereafter in the subsequent process the cold rolled sheets are cut into required size of aluminum circles and after they are annealed in annealing furnace, the same are packed for shipment to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 9 (SC) It is submitted that it could be seen from the above citations that where the words used in an exemption notification are plain and clear in meaning and there is no doubt or ambiguity, such words, represent the legislative intent, leaving no room for any rowing expedition into the intention of the exempting authority. In such a situation, there is no scope for purposive interpretation . 14. It is submitted that Sr. No. 220 of Central Excise Notification No. 12/2012-C.E dated 17.03.2012 has not been updated in EDI systems. The import duty for aluminum scrap taint-tabor is 'Nil' under Sr. No. 220 of Central Excise notification No. 12/2012-C.E. dated 17.03.2012. The EDI system does not capture serial No. 220 of the said notification at the time of filing bill of entry. The issue was taken up with the system manager, Chennai who vide mail dated 31.05.2012 informed that Sr. No. 220 of notification No. 12/2012-C.E. dated 17.03.2012 of Central Excise Notification is not applicable for imported good as pointed out by TRU. However, Assistant Commissioner (EDI), Chennai Port vide letter F. No. 5.Misc.12/2012-S.U. dated 07.01.2013 informed that on the basis of clarification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20th April, 2015 in Special Civil Application No. 6089 of 2015 as under. 4. Brief facts of the case are that petitioner is an importer of aluminum waste and scrap. That from said waste and scrap, petitioner manufactures aluminum plates and sheets as well as he gets manufactured circles from the plates, sheets and utensils in his own factory. He claims exemption of customs duty of the raw material imported by him under Notification No. 12/2012 Central Excise dated 17.3.2012. 4.1 The executing authority by judgment dated 9.3.2011, which is at Page-124 of the paper book, held that petitioner was manufacturing the goods other than plates and sheets and was also manufacturing circles and tubes and therefore, he is liable to pay the customs duty and is not entitled to benefit of Notification No. 12/2012 Central Excise. 4.2 The petitioner has challenged this order in Appeal. The Commissioner of Customs (Appeals) by its judgment dated 2.9.2011 held as under: 6.3 ....They besides other proofs as mentioned above, have submitted details of manufacturing process along with flow chart, details of plants machineries installed in the unit, Chartered Engineer s certificate dated 17.10.2010 and pho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les which are cleared under the compound levy scheme. 5. We are of the opinion that so far as the circle is concerned, this objection was raised by the Revenue in the very first assessment order passed by the Assessing Authority dated 9.3.2011 which was not accepted by the Commissioner of Customs (Appeals), Ahmedabad by judgment dated 2.9.2011 and the Commissioner of Customs (Appeals) was pleased to allow the appeal of the petitioners. Therefore, we are of the considered opinion that there was no new facts which came into light on the basis of which the Commissioner of Customs (Appeals), Ahmedabad jumped to the conclusion that new facts are emerged and the petitioner is manufacturing circles. When there were already six orders as pointed out by learned counsel for the petitioner -, in favour of petitioner passed by the Commissioner of Customs (Appeals), Ahmedabad as well as by the Assessing Officer, in such situation the Commissioner of Customs (Appeals), Ahmedabad was not justified in holding that new fact has come into existence over-looking the finding of fact recorded by the Commissioner of Customs (Appeals), Ahmedabad in its earlier judgment dated 2.9.2011. Therefore, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
