Divis Laboratories Ltd. , Eou Unit vs Commissioner Of C.Ex
- CitationAppeal Nos.22232
Ratio decidendi
The rule this decision rests on
Where a classification dispute is pending before a Larger Bench and in appeal before the Supreme Court, the Tribunal will not express any view on that classification issue; instead it may remand the matter to the original adjudicating authority for a limited purpose, namely to examine whether the importer is eligible for an exemption notification where the eligibility turns on the country of origin and the fulfilment of the notification's other conditions, which the adjudicating authority had not considered.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Original No.VIZ-CUSTM-000-COM-031-13-14, dated 30.03.2014 passed by the Commissioner of Customs , Visakhapatnam. For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. B.S.V. Murthy, Member(Technical)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No Seen 3. Whether their Lordship wish to see the fair copy of the Order?
Yes 4. Whether Order is to be circulated to the Departmental authorities?
Divis Laboratories Ltd. , EOU unit ..Appellant(s)
Vs. Commissioner of C.Ex., Visakhapatnam, A.P. ..Respondent(s)
Appearance
Mr. G. Natarajan, Advocate for the appellants Mr. S.K. Singh, A.R. (Commissioner) for the respondent Coram:
Honble Mr. Justice G. Raghuram, President Honble Mr. B.S.V. Murthy, Member(Technical)
Date of Hearing: 25.5.2015 Date of decision:25.5.2015
FINAL ORDER No._______________________ [Order per: B.S.V. Murthy:]
The issue involved is whether coal imported by the appellant is steam coal or bituminous coal. The department has taken a view that it is bituminous coal and therefore, the appellant is eligible for the benefit at Serial No.123 of Notification No.12/2012-Cus., dated 17.3.2012.
2. Heard both sides.
3. In this case, whether the coal imported is steam coal or bituminous coal would not be relevant if the claim of the appellant that they are eligible for the benefit of exemption Notification No.127/2011-Cus., dated 30.12.2011 and Notification No.64/2012-Cus dated 31.12.2012. Under these notifications, the commodities listed therein are exempted and the coal figured at serial No.207 in both the notifications. It was also submitted that the coal imported by the appellant was from Indonesia, a notified country. Since the original adjudicating authority has not considered this submission and eligibility requires examination of certificate of country of origin and fulfillment of other conditions, if any in the Notification, it was submitted that matters may be remanded at this stage itself. Ld. A.R. has no objection.
4. In view of the above without making any observation on the classification issue which is pending decision on the reference by a Larger Bench and also the appeals filed by the importers before the Honble Supreme Court, we remand the matter to the original adjudicating authority for limited purpose of considering the eligibility of the appellant for the benefit of Notifications referred to above for import of coal from Indonesia. In the result, both the stay applications as well as appeals get disposed of.
( G. RAGHURAM ) PRESIDENT
scd/
(B.S.V. MURTHY) MEMBER (TECHNICAL)
2
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