Emmsons International Limited Vs. Commissioner of Customs - Court Judgment

Excerpt:

.....phosphate (dap) imported by the applicants by 2 bs/e dated 6.5.97 and 23.5.97 for 6960 m.t. and 7500 m.ts respectively, in the absence of satisfactory end use certificate.2. we have heard both sides. in terms of sr.no.50 of the table to the notification, dap for use as manure or for the production of complex fertilisers, is totally exempted from levy of customs duty and additional duty . the notification does not prescribe production of end use certificate. however, the applicants on their own furnished the undertaking at the time of filing of bs/e that they shall file end use certificate to the effect that the imported goods were used as manure or in the production of complex fertilisers. they submitted certificate issued by m.p.state co-operative marketing federation limited, bhopal.the lower appellate authority has held that the certificate dated 14.3.2000 of the joint director of agriculture (fert.), director of agriculture, m.p. bhopal is not acceptable as (a) it does not mention the bs/e through which the dap covered by the certificate was imported and (b) that the certificate is vague as it certifies that the imported dap was used by the cultivators of the state of.....

Judgment:

1. The application for waiver of pre-deposit of duty of Rs. 61,37,280/-arises out of the order of the Commissioner of Customs (A) who has set aside the adjudication order of the Asstt.Commissioner and allowed the appeal of the Revenue, holding that the benefit of exemption in terms of Notification 36/96-Cus dated 23.7.96 as amended by Notification No. 11/97-Cus dated 1.3.97 was not available to Di-ammonium phosphate (DAP) imported by the applicants by 2 Bs/E dated 6.5.97 and 23.5.97 for 6960 M.T. and 7500 M.Ts respectively, in the absence of satisfactory end use certificate.

2. We have heard both sides. In terms of sr.no.50 of the Table to the Notification, DAP for use as manure or for the production of complex fertilisers, is totally exempted from levy of Customs duty and additional duty . The Notification does not prescribe production of end use certificate. However, the applicants on their own furnished the undertaking at the time of filing of Bs/E that they shall file end use certificate to the effect that the imported goods were used as manure or in the production of complex fertilisers. They submitted certificate issued by M.P.State Co-operative Marketing Federation Limited, Bhopal.

The lower Appellate Authority has held that the certificate dated 14.3.2000 of the Joint Director of Agriculture (Fert.), Director of Agriculture, M.P. Bhopal is not acceptable as (a) it does not mention the Bs/E through which the DAP covered by the certificate was imported and (b) that the certificate is vague as it certifies that the imported DAP was used by the cultivators of the State of M.P. as a chemical fertilizer.

We see prima facie force in the submission of the applicants that in the absence of any stipulation in the relevant Notification regarding submission of end use certificate from any particular authority, the declaration on the Bs/E that the goods imported will be used for the purpose set out in the Notification should be sufficient. There is no material, on record to show that the goods have been otherwise used. In the light of the orders of the Tribunal in the case of CCE, Ahmedabad v. Maize Products [1997(94)E.L.T. 651(Tri)] holding that benefit of exemption cannot be denied for non production of end use certificate in the absence of any such requirement in the Notification, we are of the view that a strong prima facie case for waiver has been made out and hence dispense with the requirement of pre-deposit of the duty and stay recovery thereof pending the appeal.