Shivam Export (100% Eou) Vs. Commissioner of Customs and

Shivam Export (100% Eou) vs Commissioner of Customs and

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Dec 05, 2003

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Citation: sooperkanoon.com/33315
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: A Wadhwa, S T C.
Decided On: Dec 05, 2003
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

Shivam Export (100% Eou)

Respondent

Commissioner of Customs and

Excerpt

.....decision in the case of treasure tech electronics ltd 2002 (53) rlt 900 (cegat-del) wherein it has been held that the duty liability would be equal to central excise duty as per central excise tariff act and not equal to customs duty. the said judgement is based on the ministry's circular no. 61879/02-cx dated 13/02/2002 and upon the hon'ble supreme court decision in the case of siv industries v. cce 2000 (117) elt 281 sc accordingly in ground no. 5.3 the appellant have contended that the duty liability would be to the extent of 16% only.on the basis of the above calculation the appellants' duty liability comes to around rs. 2.83 crores. we also note that the appellants, though pleaded financial hardship in their stay petition but has not placed any evidence to that effect on record. as such taking into consideration the above facts and circumstances of the case we direct the appellant to deposit the admitted duty liability of rs. 2,82,00,000/-(rupees two crore eighty two lakhs only) within a period of 12 weeks from today. subject to deposit of the above mentioned amount of duty pre-deposit of the balance amount of duty and the entire amount of penalty shall stand waived and its recovery stayed during the pendency of the appeal. needless to state that failure to deposit the above amount would result in automatic dismissal of the appeal without any further notice to that effect.

Full Judgment

1. Shri Hardik Modh, learned Advocate appears and seeks adjournment.

However, we find that adjournment request was also made on 1^st December, 2003 when the matter was adjourned to today. As such we are not inclined to adjourn the matter any further. Accordingly we have heard Shri A. Shukla, learned SDR and have gone through the impugned order vide which the Commissioner has confirmed the demand of duty of Rs. 11,52,96,406/- (Rupess Eleven Crore Fifty Two Lakhs Ninety Six Thousand Four Hundred Six only) with imposition of personal penalty of Rs. 3,00,00,000/- (Rupees Three Crores) on the findings that the goods cleared by the appellants for export without payment of duty have been diverted for home consumption.

2. On going through the memo of appeal filed by the appellant and the ground taken by them, we find that the above allegations and findings arrived at by the authorities below have not been controverted by the appellant. However, their contention is that they are liable to pay duty of excise only @ 16% instead of full duty of excise equal to the aggregate duties of customs. For the above proposition they have relied upon the Tribunal decision in the case of Treasure Tech Electronics Ltd 2002 (53) RLT 900 (CEGAT-Del) wherein it has been held that the duty liability would be equal to Central Excise duty as per Central Excise Tariff Act and not equal to customs duty. The said judgement is based on the Ministry's Circular No. 61879/02-CX dated 13/02/2002 and upon the Hon'ble Supreme Court decision in the case of SIV Industries v. CCE 2000 (117) ELT 281 SC Accordingly in ground No. 5.3 the appellant have contended that the duty liability would be to the extent of 16% only.

On the basis of the above calculation the appellants' duty liability comes to around Rs. 2.83 crores. We also note that the appellants, though pleaded financial hardship in their stay petition but has not placed any evidence to that effect on record. As such taking into consideration the above facts and circumstances of the case we direct the appellant to deposit the admitted duty liability of Rs. 2,82,00,000/-(Rupees Two Crore Eighty Two lakhs only) within a period of 12 weeks from today. Subject to deposit of the above mentioned amount of duty pre-deposit of the balance amount of duty and the entire amount of penalty shall stand waived and its recovery stayed during the pendency of the appeal. Needless to state that failure to deposit the above amount would result in automatic dismissal of the appeal without any further notice to that effect.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Shivam Export (100% Eou) vs Commissioner of Customs and Same Subject Service Tax Same Judge A Wadhwa, S T C.