Devidayal Industries Ltd. Vs. Commissioner of Customs

Devidayal Industries Ltd. vs Commissioner of Customs

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Jul 27, 2007

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Citation: sooperkanoon.com/45915
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: J Balasundaram, Vice, A T K.K.
Decided On: Jul 27, 2007
Subject: Customs

Case Summary

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

Customs

Key legal issue: Customs

Parties & Advocates

Appellant / Petitioner

Devidayal Industries Ltd.

Respondent

Commissioner of Customs

Legal References

Reported In: (2007)(121)ECC331

Excerpt

.....before us, only a copy of application dated 10.04.1995 for conversion of value based advance licence to quantity based advance licence has been filed and copy of the conversion stated to have been allowed by the joint director (general) of foreign trade on 21.04.1995 has not been filed.therefore, we agree with the adjudicating authority that the importers were governed by the conditions relating to value based advance licence, namely, that no input stage credit should have been taken by them. admittedly, input stage credit has been availed by them in the manufacture of stainless steel wire exported. this position stand admitted by the appellants before the commissioner as well as before the tribunal as seen from para 6 of the appeal memorandum.3. we, therefore, uphold the finding that the benefit of exemption in terms of notification 203/92-cus dated 19.05.1992 is not admissible to the appellants herein. however, while upholding the finding that the appellants are liable to pay duty, we note their plea that even if they are liable to pay duty, it has not been correctly calculated and in the appeal memorandum reference has been made to a particular amount availed by way exemption notification only and certain discrepancies alleged to have entered in the calculation of the duty demand. we, therefore, remand the issue of computation of correct duty demand to the commissioner, who shall pass fresh orders on the correct amount of duty demandable from the appellants after extending a reasonable opportunity of being heard in their defence and for substantiating their case in respect of quantum of demand to be confirmed on them in the light of our findings above.

Full Judgment

1. Vide the impugned order the Commissioner of Customs has confirmed duty demand of Rs. 17,98,718/ together with interest at the rate of 24% per annum and imposed penalty of equal amount under the provision of Section 112(a) of the Act on the appellants herein on the ground that imported materials under bill of entry on which they claimed exemption for payment of duty of customs and from payment of additional duty, in term of Notification No. 203/92-Cus dated 19.05.1992 by subscribing to a declaration that they had not obtained input stage credit under Rule 56A or Rule 57A on materials utilized by them for discharging export obligation under VABAL licence dated 28th January 1994 were not covered by the notifications. The case of the department is that the benefit of exemption is not available for the reason that the importers obtained input stage credit under the provisions of Rule 57A of the Central Exciso Rules, which was contrary to the conditions of Notification 203/92.

2. None appears for the appellants in the appeal filed against above order, hence we heard the learned S.D.R. and perused the records. We find that the plea of the importers that their licence was converted from VABAL licence to quantity based advance licence under which there was no stipulation regarding non-availment of input stage credit, has been rejected by the Commissioner on the ground that they had not filed any documentary evidence to support the above stand. Even before us, only a copy of application dated 10.04.1995 for conversion of value based advance licence to quantity based advance licence has been filed and copy of the conversion stated to have been allowed by the Joint Director (General) of Foreign Trade on 21.04.1995 has not been filed.

Therefore, we agree with the adjudicating authority that the importers were governed by the conditions relating to value based advance licence, namely, that no input stage credit should have been taken by them. Admittedly, input stage credit has been availed by them in the manufacture of stainless steel wire exported. This position stand admitted by the appellants before the Commissioner as well as before the Tribunal as seen from para 6 of the appeal memorandum.

3. We, therefore, uphold the finding that the benefit of exemption in terms of Notification 203/92-Cus dated 19.05.1992 is not admissible to the appellants herein. However, while upholding the finding that the appellants are liable to pay duty, we note their plea that even if they are liable to pay duty, it has not been correctly calculated and in the appeal memorandum reference has been made to a particular amount availed by way exemption notification only and certain discrepancies alleged to have entered in the calculation of the duty demand. We, therefore, remand the issue of computation of correct duty demand to the Commissioner, who shall pass fresh orders on the correct amount of duty demandable from the appellants after extending a reasonable opportunity of being heard in their defence and for substantiating their case in respect of quantum of demand to be confirmed on them in the light of our findings above.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Devidayal Industries Ltd. vs Commissioner of Customs Same Subject Customs Same Judge J Balasundaram, Vice, A T K.K.