M/S. Hickson and Dadajee Pvt. Ltd. Vs. Commissioner of Customs, Nhava Sheva - Court Judgment

SooperKanoon Citationsooperkanoon.com/942551
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnMar-29-2012
Case Number APPLICATION NO. C/S/443/10 IN APPEAL NO. C/260/10 - Mum Arising out of Order-in-Original No. 16
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL)
AppellantM/S. Hickson and Dadajee Pvt. Ltd.
RespondentCommissioner of Customs, Nhava Sheva
Advocates:For the Appellant : Shri R.V. Shetty, Advocate. For the Respondent : Shri Sanjay Kalra, Appraiser (A.R.).
Excerpt:
ashok jindal the appellant is in appeal along with a stay application against the impugned order. 2. after hearing both sides for some time on the stay application, we are of the view that it would be appropriate to decide the appeal at this stage itself. therefore, we take up the appeal for final hearing. 3. brief facts of the case are that the appellant had imported various consignment of goods under import licence no. 315627 dated 23.07.1993 and availed the benefit of notification no. 203/92-cus dated 19.05.1992. as per the condition (v)(a) of the said notification, the appellant was entitled for benefit of duty free imports, the export obligation ought to have been discharged by exporting goods manufactured in india in respect of which no input stage credit is availed under rule 56a or 57a of the central excise rules, 1944. on examination it was found that the input stage modvat credit has been availed by the appellant. therefore, they have violated the exim policy 1992-97. a case has been made out. a show-cause notice was issued which was contested by the appellant. despite opportunity, demand was confirmed along with the interest and penalty under section 114a of the customs act, 1962. 4. the learned counsel for the appellant submits that as the unit is closed since 1995 and has been taken over by another unit, they are not having the relevant records to show that the appellant has not availed modvat credit under rule 56a or 57a of the central excise rules, 1944. he further submits that while adjudicating the matter only one opportunity has been granted and the order has been passed ex-parte. he also submitted that the demand of interest has been confirmed against them in terms of section 28 and 28aa of customs act, 1962. as per the section 28a of the customs act, interest is payable only after 90 days of the adjudication. he further submitted that the penalty under section 114a has been imposed on the appellant equivalent to duty which is not sustainable as the provisions of section 114a came into effect from 28.09.1996 and the import took place in 1993. 5. considering the submissions made by the learned counsel we find that in the absence of any documentary evidence, the allegation made against the appellant seems to be correct. therefore, the appellant is liable to pay duty as confirmed by the impugned order. we do agree with the contention of the learned advocate that the interest under section 28aa of the customs act is payable after 90 days of the adjudication. as the provisions of penalty under section 114a of the customs act, 1962 came into force with effect from 28.09.1996, therefore for the imports made in 1993, the appellants are not liable for penal action. in view of the above, we pass the following order:- the appellant shall pay duty confirmed against them alongwith the interest (which shall be payable after 90 days of the adjudication). 6. the appeal as well as the stay application are disposed of in the above terms.
Judgment:

Ashok Jindal

The appellant is in appeal along with a stay application against the impugned order.

2. After hearing both sides for some time on the stay application, we are of the view that it would be appropriate to decide the appeal at this stage itself. Therefore, we take up the appeal for final hearing.

3. Brief facts of the case are that the appellant had imported various consignment of goods under import licence No. 315627 dated 23.07.1993 and availed the benefit of Notification No. 203/92-Cus dated 19.05.1992. As per the condition (V)(A) of the said Notification, the appellant was entitled for benefit of duty free imports, the export obligation ought to have been discharged by exporting goods manufactured in India in respect of which no input stage credit is availed under Rule 56A or 57A of the Central Excise Rules, 1944. On examination it was found that the input stage MODVAT credit has been availed by the appellant. Therefore, they have violated the EXIM Policy 1992-97. A case has been made out. A show-cause notice was issued which was contested by the appellant. Despite opportunity, demand was confirmed along with the interest and penalty under Section 114A of the Customs Act, 1962.

4. The learned Counsel for the appellant submits that as the unit is closed since 1995 and has been taken over by another unit, they are not having the relevant records to show that the appellant has not availed MODVAT Credit under Rule 56A or 57A of the Central Excise Rules, 1944. He further submits that while adjudicating the matter only one opportunity has been granted and the order has been passed ex-parte. He also submitted that the demand of interest has been confirmed against them in terms of Section 28 and 28AA of Customs Act, 1962. As per the Section 28A of the Customs Act, interest is payable only after 90 days of the adjudication. He further submitted that the penalty under Section 114A has been imposed on the appellant equivalent to duty which is not sustainable as the provisions of Section 114A came into effect from 28.09.1996 and the import took place in 1993.

5. Considering the submissions made by the learned Counsel we find that in the absence of any documentary evidence, the allegation made against the appellant seems to be correct. Therefore, the appellant is liable to pay duty as confirmed by the impugned order. We do agree with the contention of the learned Advocate that the interest under Section 28AA of the Customs Act is payable after 90 days of the adjudication. As the provisions of penalty under Section 114A of the Customs Act, 1962 came into force with effect from 28.09.1996, therefore for the imports made in 1993, the appellants are not liable for penal action. In view of the above, we pass the following order:-

The appellant shall pay duty confirmed against them alongwith the interest (which shall be payable after 90 days of the adjudication).

6. The appeal as well as the stay application are disposed of in the above terms.