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TMI Blog2024 (10) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... STAVA, MEMBER (TECHNICAL) Shri A. K. Choudhary, Authorized Representative for the Revenue Absent on Call, for the Respondent ORDER This appeal has been filed by the Revenue against Order-in-Original No.07/COMMISSIONER/NOIDA/2013-14 dated 31.05.2013 of the Commissioner Customs, Central Excise Service Tax, Noida. By the impugned order following has been held as under:- ORDER (1) I hold that the export of frozen Sheep Meat quantity of 31,70,499 Kgs, valued at Rs.42,22,09,895/- (Forty Two crores, twenty two lakhs, nine thousand, eight hundred ninety five only), made from Sahibabad plant, by M/s M. K. Overseas Pvt. Ltd., through ICD, Dadri, Noida, Uttar Pradesh ICD Dapper, Derabassi Punjab/ICD Loni, Ghaziabad, Uttar Pradesh/IGI Airport New Delhi/JNPT, Nhava Sheva, Raigad, Maharashtra, were made in contravention to the ITC(HS) and the provisions of the Customs Act. I therefore, hold that these exported frozen sheep meat as prohibited under Section 11 of the Customs Act, 1962 and liable to confiscation in terms of the provisions of Section 113 (d) of the Customs Act, 1962. As the above goods are not available for confiscation / redemption, I do not propose any fine in lieu of confiscation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the quality by the concerned person issuing the certificate. 3.1 We have heard Shri A. K. Choudhary learned departmental Authorized Representative appearing for the Appellant Revenue and none appeared on behalf of the Respondent. 3.2 The records suggest that the Respondents have not been appearing in the matter since long. It is also observed from the records that notices were sent to the Respondent which has been received back with a remark of the Postal Authority काफी समय से ताला बंद . In term of Rule 20 of CESTAT Procedure Rules, 1982 which provides as under:- RULE 20. Action on appeal for appellant s default. Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits: 3.3 Matter is thus taken up for decision ex parte after hearing the Authorized Representative appearing for the Revenue. 4.1 We have considered the impugned order along with the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o violation of section 11 of the Customs Act, 1962. Once the certificate(VHC) has been issued by the designated veterinary officer and the genuineness of the same has been accepted I have no reasons for challenging VHC issued by the Designated Veterinary authority. Thus, I refrain from conclusion that provisions of ITC(HS) have been violated in respect of Derabassi Plant. The note 3 of the Chapter 2 of the ITC(HS) /Export Policy also provides that laboratories duly recognized by APEDA, as well as in-house laboratories attached under the abattoirs cum meat processing plant registered with APEDA and Agency approved labs, may also be used to conduct the necessary tests for confirmation of quality under the supervision of the designated veterinary authority of the state. On the basis of these tests and inspections carried out by veterinarians duly registered under the Indian Veterinary Council Act, 1984, employed by the exporting unit and supervised by the designated veterinary authority of the state, Veterinary Health Certificate are required to be issued by the designated authorities of the state. Accordingly, VHC have been issued by designated authority of the state Dr Rajkumar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the impugned order. The following decisions are supporting the same:- Titan Medical Systems Pvt. Ltd. vs. Collector of Customs, New Delhi, 2003 (151) E.L.T. 254 (S.C.). 13 . As regards the contention that the appellants were not entitled to the benefit of the exemption notification as they had misrepresented to the licensing authority, it was fairly admitted that there was no requirement, for issuance of a licence, that an applicant set out the quantity or value of the indigenous components which would be used in the manufacture. Undoubtedly, while applying for a licence, the appellants set out the components they would use and their value. However, the value was only an estimate. It is not the respondents case that the components were not used. The only case is that the value which had been indicated in the application was very large whereas what was actually spent was a paltry amount. To be noted that the licensing authority having taken no steps to cancel the licence. The licensing authority have not claimed that there was any misrepresentation. Once an advance licence was issued and not questioned by the licensing authority, the Customs authorities cannot refuse exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could be provided by such Captive Power Plant. Therefore, it was not open 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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