M/S. Paharpur Cooling Towers Ltd vs Commissioner Of Customs (Port), ...

Stay Petition No. C/SP/70553/2013, C/SP/70554/2013 And Appeal No. C/70558/2013, C/70559/2013

(Arising out of the order in original No. KOL/CUS/Commr/06/2013 dated 25.02.2009 passed by the Commissioner of Customs (Appeals), Kolkata)

FOR APPROVAL AND SIGNATURES OF

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

1. Whether Press Reporters may be allowed to see : 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 : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities?

M/s. Paharpur Cooling Towers Ltd APPLICANT(S) VERSUS Commissioner of Customs (Port), Kolkata ...RESPONDENT (S)

APPEARANCE:

SHRI S. Sarkar, CA, CR, FOR the Revenue SHRI M. Singh, Asst., Commr, (AR) for the Respondent

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

Date of Hearing: 01.10.15 Date of Decision: 01.10.15

ORDER NO. FO/A/75635-36/15

Per Shri H.K.Thakur

These stay applications & appeals have filed by appellant against OIO No. KOL/CUS/Commr/06/2013 dt 25/2/13 & OIO No. KOL/CUS Commr/08 2013 dt 06/03/13 under which demands of Rs. 58,19,0271-& Rs. 46,16,231/- respectively have been confirmed, alongwith interest. As the issue involved in both these appeals & stay applications is the same, therefore, all of them are being taken up together for disposal under this common order.

Sh. S. Sarkar (CA) appearing on behalf of the appellant argued that appellant imported Aluminum Fin Strip of Chinese Origin and filed bills of entry for the clearance of the same. That the issue involved in these proceedings is whether goods declared by the appellant during the period 23/03/2009 to 22/3/11 are leviable to safeguard duty in terms of Noft. No. 71/2009 Cus dt 19/06/2009. It is the case of the appellant that as per the second proviso to Sec- 8C(2) of the Customs Tarff Act 1975 an exemption notification issued for levying antidumping duty can not be made operational for more than 200 days from the date it has been imposed. That Noft No. 71/2009/Cus dt 19/6/09 made applicable retrospectively from 23/3/2009 is beyond 200 days of its issue and is not proper. That these additional grounds could not be argued before the adjudicating authority as both the orders-in- original were decided exparte.

2.1 That on merits also appellant has a strong case as the percentage of alloying elements need not be more the 1% which has been erroneously interpreted by the adjudicating authority. Learned CA made the bench go through Para- 18 of the OIO dt 25/2/13 to argue that in the case of Fe + Silicon combination only the % should be more the 1%. That percentage of other alloying elements could be 0.1% or more each in order to be eligible as alloyed aluminum. That copies of metal testing reports got done by the Revenue have not been made available to the appellant.

3. Sh. M. Singh Add Commr (AR) appearing on behalf of the Revenue made the bench go through Para- 13 of the OIO dt 25/2/13 to drive home the point that appellant was trying to delay the adjudication proceedings by asking for adjournments. That the case of the Revenue is strong as held by the Adjudicating authority as the percentage of alloying elements is not more than 1% in order to claim the imported goods as alloyed Aluminum.

4. Heard both sides & perused the case records. As the issue involved in these proceedings lies in a narrow/compass, therefore, after allowing stay applications appeals themselves are taken up for disposal. It is the case of the appellant that a notification issued under Sec-8 (2) of the Customs tariff Act 1975 is operative only upto 200 days from the date of issue & can not be made applicable for the earlier periods. It is observed from the case records that these additional grounds raised in the Miscellaneous application were not raised before the Adjudicating authority, therefore, after disposing off the miscellaneous application the matter is remanded back to the Adjudicating authority for denovo consideration. Even the other issue, regarding merits of the case & non supply of the relied upon test reports to the appellant, is also required to be addressed properly by giving copies of Customs House laboratory test reports to the appellant.

4.1 However it is also observed from the case records in reply to show cause dt 28/8/12 appellant Vide their letter dt 31/10/12 sought extension of time to file proper reply. Another extension was sought by the appellant up to 20/11/12 and after completion of that time appellant was asked to file reply. A further deferment upto 31/12/12 was also allowed by the Revenue. A personal hearing was granted for 24/01/2013 by the adjudicating authority which was attended by the appellant but a written reply was submitted to be filed by 28/1/13. It is further observed that instead of filing reply appellant vide letter dt 28/01/13 requested the adjudicating authority to provide them all the relied upon test reports. Appellant should have asked for copies of such reports immediately on receipt of the show cause notice dt 28/8/12 instead of asking it after a period of five months. Accordingly we are of the view that appellant should be put to some conditions so that they co-operate with the adjudication proceedings. It is directed that appellant should pre-deposit an amount of Rs. 8 lakh within eight weeks & report compliance directly to the adjudicating authority. Learned Adjudicating authority on being shown evidence of such compliance will take up the case for denovo consideration after following the principles of natural justice & on providing an opportunity of personal hearing to the appellant. All the issues have been kept open, including the grounds raised by the appellant in Misc. application for additional ground.

5. Appeals filed by the appellant are allowed by way of remand to the Adjudicating Authority. Stay applications & Misc. applications are also disposed of.

(Operative part of the order pronounced in the court.)

(D.M.MISRA) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER

Tushar kumar

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