Shahideep Plastic Processors Vs. Commissioner of C. Ex.

Shahideep Plastic Processors vs Commissioner of C. Ex.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Oct 04, 1999

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Citation: sooperkanoon.com/16913
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On: Oct 04, 1999
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Shahideep Plastic Processors

Respondent

Commissioner of C. Ex.

Legal References

Reported In: (2000)(115)ELT206Tri(Mum.)bai

Excerpt

.....claimed. he therefore set aside the assistant commissioner's order and hence this appeal by the department.2. it is not in dispute that a declaration has been made by the importer, that the goods had been sold to the appellant on high seas, and that no refund of duty or modvat was claimed by it. failure to make a declaration in the presence of the assistant commissioner existed but in our view, this lapse should not disentitle the appellant from taking credit. the assistant commissioner has, in his order, relied upon the certificate of the chartered accountant that the appellant had paid the customs duty in question, thus showing that it purchased the goods on high sea sale (i.e. before the goods were cleared from customs) and an affidavit from the importer that no refund of countervailing duty has been obtained for any modvat credit taken. the precaution for which a declaration before the assistant commissioner as prescribed therefore had been fulfilled. there was therefore no reason to deny the credit.3. the commissioner (appeals) also finds that the orders of the assistant commissioner is in excess of the limit of rs. 50,000/- prescribed by the board for adjudication by the assistant commissioner.these instructions of the board, in their circular no. 3/92/cx-6, dated 14-5-1992 laid down limits [reproduced in 1992 (60) e.l.t. e3]. the limits of the assistant commissioner to demand duty under section 11a is rs. 50,000/-. the instructions are issued in pursuance of amendment of section 11a and the amount mentioned is the duty involved. it seems clear that the intention of the entire circular relates to demand under section 11 a. it does not appear to be intended to restrict powers of adjudication under rule 57-1.

Full Judgment

1. The appellant availed of Modvat credit of the additional duty of Customs paid on a quantity of polystyrene which was imported by M/s.

Bharat International and sold to it. Notice was issued proposing to deny the credit on the ground that it had not been shown that the sale was on the high seas and that endorsement, prescribed by instructions issued by the Board had not been made on the bills of entry relating to Modvat credit refund. The Assistant Commissioner came to the conclusion that the sale was on high sea and that the procedure prescribed had been followed and vacated the show cause notice. The department appealed this order. The Collector (Appeals) was of the view that the requisite declaration had not been made before the Assistant Collector of Customs by the importer that the goods had been sold on high seas sales and that no refund of duty would be claimed. He therefore set aside the Assistant Commissioner's order and hence this appeal by the department.

2. It is not in dispute that a declaration has been made by the importer, that the goods had been sold to the appellant on high seas, and that no refund of duty or Modvat was claimed by it. Failure to make a declaration in the presence of the Assistant Commissioner existed but in our view, this lapse should not disentitle the appellant from taking credit. The Assistant Commissioner has, in his order, relied upon the certificate of the Chartered Accountant that the appellant had paid the Customs duty in question, thus showing that it purchased the goods on high sea sale (i.e. before the goods were cleared from Customs) and an affidavit from the importer that no refund of countervailing duty has been obtained for any Modvat credit taken. The precaution for which a declaration before the Assistant Commissioner as prescribed therefore had been fulfilled. There was therefore no reason to deny the credit.

3. The Commissioner (Appeals) also finds that the orders of the Assistant Commissioner is in excess of the limit of Rs. 50,000/- prescribed by the Board for adjudication by the Assistant Commissioner.

These instructions of the Board, in their Circular No. 3/92/CX-6, dated 14-5-1992 laid down limits [reproduced in 1992 (60) E.L.T. E3]. The limits of the Assistant Commissioner to demand duty under Section 11A is Rs. 50,000/-. The instructions are issued in pursuance of amendment of Section 11A and the amount mentioned is the duty involved. It seems clear that the intention of the entire circular relates to demand under Section 11 A. It does not appear to be intended to restrict powers of adjudication under Rule 57-1.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Shahideep Plastic Processors vs Commissioner of C. Ex. Same Subject Service Tax