M/S. Caltex Gas India Pvt. Ltd vs Cc, Tuticorin

(Arising out of Order-in-Appeal No. 93/2004 dated 10.12.2004, passed by the Commissioner of Customs & Central Excise (Appeals), Trichy).

M/s. Caltex Gas India Pvt. Ltd. : Appellant

Vs.

CC, Tuticorin : Respondent

Appearance

Shri R. Suresh, Adv., For the applicant

Shri B. Balamurugan, AC (AR) For the respondent

CORAM

Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member

FINAL ORDER No. 40970 / 2015

Date of Hearing/Decision: 11.08.2015

Per: R. Periasami

Appellant filed this appeal against the Order of the Commissioner (Appeals).

2. The brief facts of the case relates to the demand of Rs.3,23,338/- being the special additional customs duty not paid by the appellants as the goods have been purchased by way of high see sales. The adjudicating authority confirmed the demand under Section 28(1). On appeal the Commissioner (Appeals) rejected the appeal and upheld the order of the adjudicating authority. Hence the present appeal.

3. Ld. Advocate reiterated the statement of facts and grounds of appeal at page 7 & 8 of appeal papers and submitted that even though the appellants have purchased the goods by way of high sea sales, they have paid sales tax as the goods (LPG) were sold to different customers. He submits that Notification No. 34/98 at S.No. 12 exempt SAD of all the goods falling under the First Schedule which are imported for sale. They have imported the LPG through high sea sales and subsequently stored and sold to various customers and paid sales tax and they are eligible for SAD exemption. He relied on the following case laws in support of his argument:

1. 2006 (202) ELT 335 (Tri.-Bang.) CC, Mangalore Vs. Hindustan Petroleum Corpn. Ltd.

2. 2006 (199) ELT 751 (Tri.-Bang.) Vijirom Chem. Pvt. Ltd. Vs. CC, Bangalore.

4. On the other hand, the Ld. AR on behalf of the Revenue reiterated the finding in the impugned order. He submits that in view of the proviso to Notification No.34/98 read with Sl. No. 12 of Table annexed to the notification, exemption from payment of SAD was not available as the goods are purchased by way of high sea sales. The LPG was not sold as such but they have to refill the cylinders and then sell LPG to various customers.

5. After hearing both the sides, we find that short issue involved in this case is denial of SAD exemption on the imported LPG. There is no dispute on the fact that the appellants have imported LPG through high sea sales transactions under the Bill of Entry No. 322 dated 17.06.1998 and there is no dispute on the sale of LPG to various customers and also discharged sales tax. On identical issue the Tribunal in the case of CC, Mangalore Vs. Hindustan Petroleum Corpn. Ltd.(supra), held that SAD is not leviable. Para 6 of the order is reproduced as under:-

6.?We have gone through the records of the case carefully. The respondents have clearly demonstrated that the indigenous LPG and the imported LPG are stored separately in the facility created. Even though the goods are procured from IOCL on High Seas Sales, it is a fact that Sales Tax has been paid on the transaction. The respondents have furnished evidence for the same. From the Budget Speech of the Finance Minister, it is clear that the intention of the Government is to levy SAD on actual users and not on traders. This Tribunal, in the case of Vigirom Chem (P) Ltd. (cited supra), has held that SAD is not leviable when the imported goods have been sold as such and bear the burden of Sales Tax. We also agree with the learned Advocate that proceedings under Section 3A cannot be continued after its omission. In view of these facts, the Revenue appeals have no merits and hence, we reject the same. In the above Tribunals decision, Tribunal has relied on the decision of Vigirom Chem (P) Ltd.(supra). The case on hand is identical to the above and hence by applying the above decision we hold that the demand of SAD on the imported goods is not sustainable. Accordingly, we set aside the impugned order and allow the appeal.

(Order dictated and pronounced in the open Court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

BB

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