Mahindra Ugine Steel Co. Ltd. Vs. Commissioner of Customs (Export), Mumbai - Court Judgment

SooperKanoon Citationsooperkanoon.com/943268
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnMay-28-2012
Case Number Application No. C/S/730/12 IN Appeal No.C/266/12 (Arising out Order-in-Original No. 04/2011-12/
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL)
AppellantMahindra Ugine Steel Co. Ltd.
RespondentCommissioner of Customs (Export), Mumbai
Advocates:For the Appellant : Shri Yogesh Patki, Advocate. For the Respondent : Shri Y.K. Agarwal, Addl.Comm (AR).
Excerpt:
ashok jindal, member (judicial) the appellant had challenged this impugned order along with application for stay. 2. the facts of the case are that the appellant purchased four value based advanced licence from tisco which were transferred under dgft under para 67 read with para 127 of the policy. on the basis of the licences for the import, certain imports were made and availed of benefit of notification 203/92. as per condition 5a of the notification no. 203/92-cus, one of the condition is that manufacturer shall not avail input credit on the inputs which were gone into manufacturing of the final product exported. as no evidence of this effect was available on record, therefore a show-cause notice dated 29.1.1999 was issued to the appellant on the premise that as there is no evidence with regard to the fulfilment of the condition 5a of the notification, appellant are not entitled for the benefit of notification. 3. matter was adjudicated and demands were confirmed. appellant challenged the order before this tribunal. matter was remanded back to the adjudicating authority to give an opportunity of being heard and thereafter pass appropriate order. in remand proceedings, it is the contention of the appellant the range superintendent of tisco has issued a certificate confirming that the condition 5a has been satisfied by tisco by reversing the input credit along with interest on the inputs which were gone into the manufacture of final product against which four advance licences were procured by tisco and transferred to the appellant. the adjudicating authority has not relied on the certificate as the same has been issued by the asst. commissioner. he further submitted that the condition 5a is to be satisfied by the licensor (transferor) of the licence and by not the transferee. he relied upon the decision of the larger bench of the tribunal in hico enterprises vs. cc 189 elt pg.135. he further submitted that the show-cause notice is barred by limitation. 4. heard the ld. counsel and considered the submission made by him. as we are of the opinion that the appeal itself can be disposed of at this stage, we waive the requirement of pre-deposit of entire demand and take up the appeal for final disposal at this stage. 5. on merit, it is contended by the counsel that the range superintendent has issued a certificate certifying that condition 5a of the notification 203/92 has been satisfied by the transferor (tisco) by reversing the input credit along with interest which is covered by the impugned four licences. this certificate has not been relied upon by the adjudicating authority. 6. in these circumstances, we are of the view that let the adjudicating authority confirm from the concerned asst. commissioner whether certificate issued by the range superintendent is correct or not. therefore the matter needs examination at the end of the adjudicating authority. accordingly, we remand back the matter to ascertain the fact from the concerned asstt. commissioner whether the certificate issued by the range superintendent is correct or not. after ascertaining the report, the adjudicating authority shall pass an appropriate order after giving reasonable opportunity to the appellant. 7. all other issues are kept open. 8. appeal and stay application disposed of in the above terms.
Judgment:

Ashok Jindal, Member (Judicial)

The appellant had challenged this impugned order along with application for stay.

2. The facts of the case are that the appellant purchased four value based advanced licence from TISCO which were transferred under DGFT under para 67 read with para 127 of the Policy. On the basis of the licences for the import, certain imports were made and availed of benefit of Notification 203/92. As per Condition 5A of the Notification No. 203/92-Cus, one of the condition is that manufacturer shall not avail input credit on the inputs which were gone into manufacturing of the final product exported. As no evidence of this effect was available on record, therefore a show-cause notice dated 29.1.1999 was issued to the appellant on the premise that as there is no evidence with regard to the fulfilment of the condition 5A of the Notification, appellant are not entitled for the benefit of Notification.

3. Matter was adjudicated and demands were confirmed. Appellant challenged the order before this Tribunal. Matter was remanded back to the adjudicating authority to give an opportunity of being heard and thereafter pass appropriate order. In remand proceedings, it is the contention of the appellant the Range Superintendent of TISCO has issued a certificate confirming that the condition 5A has been satisfied by TISCO by reversing the input credit along with interest on the inputs which were gone into the manufacture of final product against which four advance licences were procured by TISCO and transferred to the appellant. The adjudicating authority has not relied on the certificate as the same has been issued by the Asst. Commissioner. He further submitted that the Condition 5A is to be satisfied by the licensor (transferor) of the licence and by not the transferee. He relied upon the decision of the larger bench of the Tribunal in Hico Enterprises vs. CC 189 ELT pg.135. He further submitted that the show-cause notice is barred by limitation.

4. Heard the ld. counsel and considered the submission made by him. As we are of the opinion that the appeal itself can be disposed of at this stage, we waive the requirement of pre-deposit of entire demand and take up the appeal for final disposal at this stage.

5. On merit, it is contended by the counsel that the Range Superintendent has issued a certificate certifying that condition 5A of the Notification 203/92 has been satisfied by the transferor (TISCO) by reversing the input credit along with interest which is covered by the impugned four licences. This certificate has not been relied upon by the adjudicating authority.

6. In these circumstances, we are of the view that let the adjudicating authority confirm from the concerned Asst. Commissioner whether certificate issued by the Range Superintendent is correct or not. Therefore the matter needs examination at the end of the adjudicating authority. Accordingly, we remand back the matter to ascertain the fact from the concerned Asstt. Commissioner whether the certificate issued by the Range Superintendent is correct or not. After ascertaining the report, the adjudicating authority shall pass an appropriate order after giving reasonable opportunity to the appellant.

7. All other issues are kept open.

8. Appeal and stay application disposed of in the above terms.