M/S Delta Enterprises vs Commissioner Of Customs (Import), ...
- CitationAppeal No. C/637/04
Ratio decidendi
The rule this decision rests on
The benefit of exemption under Notification No. 22/99-Cus is not defeated merely because the importer holds a Form-2 registration for trading purposes and has filed a declaration seeking proforma credit under Rule 57A, where the importer has in fact traded the imported goods under sales invoices and the Central Excise authority certifies that it has neither availed Modvat credit under Rule 57A nor passed on such credit under Rule 57G; the condition of the notification is satisfied in such circumstances, and a denial of the exemption on the ground of a mere declaration or registration, without regard to the actual conduct of trading and the certificate of non-availment, is not sustainable.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 249/04/MCH dated 03.06.2004 passed by the Commissioner of Customs (Appeals), New Custom House, Mumbai].
For approval and signature:
Honble Shri P.S. Pruthi, Member (Technical) Honble Shri Ramesh Nair, Member (Judicial)
======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen of the order?
4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================
M/s Delta Enterprises Appellant
Vs.
Commissioner of Customs (Import), Mumbai Respondent
Appearance: Mr. Jasraj Goyal, Proprietor for Appellant
Mr. M. K. Mall, A. C. (AR) for Respondent
CORAM: Honble Shri P.S. Pruthi, Member (Technical) Honble Shri Ramesh Nair, Member (Judicial)
Date of Hearing: 03.09.2015
Date of Decision: .2015
ORDER NO.
Per : Ramesh Nair
This appeal is directed against Order-in-Appeal No. 249/04/MCH dated 03.06.2004, wherein the Ld. Commissioner (Appeals) rejected the appeal of the appellant.
2. The facts of the case is that in the Order-in-Original dated 28.12.2001, the adjudicating authority denied the benefit of exemption Notification No. 22/99-Cus and confirmed the consequential demand of Rs.31,824/- in respect of special additional duty on the ground that the appellant has availed Modvat Credit under Rule 57A of Central Excise Rules, 1944, which is violation of condition of said Notification.
Aggrieved by the said order, the appellant filed the appeal before the Commissioner (Appeals) who rejected the appeal on the ground that the appellant has filed declarations in respect of imported Hychem Silicone classifying under Bill of Entry No. 104192 dated 19.01.2000, A trading declaration wherein it was also declared to avail proforma credit under Rule 57A of Central Excise Rules, 1944, in respect of the same goods. Accordingly, the appellants have filed two declarations, one for availing benefit under Notification No. 22/99 and the other for proforma credit under Rule 57A.
3. The appellants have been issued Form-2 Registration Certificate for issuing invoice under Rule 57G of Central Excise Rules, 1944 for the trading purpose only.
4. The Ld. Commissioner further found that the appellants have not submitted any documents regarding trading of goods as no invoices were issued. The Certificate issued by the Central Excise does not show that the goods were traded. Therefore, the condition of Notification No. 22/99 was not fulfilled. Aggrieved by the first appellate order, the appellant filed this appeal.
5. Shri Jasraj Goyal, Propietor of the appellant appeared and submits that the goods imported by them have been traded under various sales bill, copies of the same were produced. He also referred to the Certificate issued by the Superintendent of Central Excise, Range-X, Belapur-I division, Mumbai-VI, wherein it was certified that the appellant is engaged in the trading activity only and they have neither availed the Modvat Credit under Rule 57A nor have they passed on the credit under Central Excise Rules, 1944. Therefore, the condition of the Notification stand complied with. The lower authority should not have denied the benefit of said Notification.
6. Shri M.K. Mall, Ld. Asst. Commr. (AR) appearing on the behalf of the Revenue reiterates the findings of the impugned order.
7. We have carefully considered the submissions made by both the sides.
8. On perusal of the records, we find that there is no dispute that the goods imported by the appellant have been sold under various sales invoices to various customers.
9. The Certificate issued by the Superintendent dated 15.01.2002 certifies that the appellant is engaged in the trading activity. They have neither availed the Modvat Credit under Rule 57A nor have they passed on the Modvat Credit under Rule 57G of Central Excise Rules, 1944.
10. In view of these facts, we do not find any reason for denial of exemption Notification No. 22/99. The appellant has satisfied the compliance of the condition of the said Notification. We, therefore, set aside the impugned order and allow the appeal.
(Pronounced in Court on )
(P.S. Pruthi) (Ramesh Nair) Member (Technical) Member (Judicial)
Saifi
4 Appeal No. C/637/04
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free