Popular Timbers vs Commissioner Of Customs, Cochin
- CitationAppeal No. 82-120/2011
Ratio decidendi
The rule this decision rests on
The conversion of timber quantity from Hoppus Ton to cubic metres for the purpose of computing refund of Special Additional Duty is governed by the formula adopted by the importer, provided that formula is shown to yield a quantity consistent with physical verification and with the conclusions of the other authorities; a refund claim computed on that basis cannot be reduced merely by substituting an international conversion factor. Where a refund has been sanctioned on the importer's computation and the same question has been decided in the importer's favour by this Tribunal in an earlier decision, that decision and the consistent findings of other authorities (the Intelligence wing of the State Commercial Tax Department, the Forest Department, and the Commissioner (Appeals) in parallel orders) are binding on the present appeals where the factual position is the same, so that the appeals must be allowed with consequential relief.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
C/1574/2011-SM, C/1575/2011-SM, C/1576/2011-SM, C/1577/2011-SM, C/1578/2011-SM, C/1579/2011-SM, C/1580/2011-SM, C/1585/2011-SM, C/1586/2011-SM, C/1587/2011-SM, C/1588/2011-SM, C/1589/2011-SM, C/1590/2011-SM, C/1591/2011-SM, C/1592/2011-SM, C/1593/2011-SM, C/1594/2011-SM, C/1601/2011-SM, C/1602/2011-SM, C/1603/2011-SM, C/1604/2011-SM, C/1605/2011-SM, C/1606/2011-SM, C/1607/2011-SM, C/1608/2011-SM, C/1609/2011-SM, C/1610/2011-SM, C/1623/2011-SM, C/1624/2011-SM, C/1625/2011-SM, C/1626/2011-SM, C/1627/2011-SM, C/1629/2011-SM, C/1630/2011-SM, C/1632/2011-SM, C/1633/2011-SM, C/1634/2011-SM, C/1635/2011-SM, C/1636/2011-SM, C/1637/2011-SM, C/1638/2011-SM
[Arising out of Orders-in-Appeal No. 82-120/2011 dated 10/03/2011 passed by the Commissioner of Customs, Cochin] [Arising out of Orders-in-Appeal No. 124-125/2011 dated 25/04/2011 passed by the Commissioner of Customs, Cochin]
For approval and signature:
HON'BLE SHRI B.S.V. MURTHY, 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? 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 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Popular Timbers XXIV/1617D, Ground Floor, CPOA Building, Indira Gandhi Road, Willingdon Island, Cochin - 682 003 Appellant(s)
E. Oriental Timbers N.H. Bye Pass, Edappally, Cochin - 682 024 Appellant(s)
Mohameden's Timber Corporation Ward No. 2/698, Adooparambu, Muvattupuzha, Kerala - 686 661 Appellant(s)
United Timber Corporation XII/404, Petta, Muvattupuzha - 686 661 Appellant(s)
Biju Abraham Nellickal, Aythala P.O., Ranny, Kerala - 689 673 Appellant(s)
Indian Timbers C.P.4/454, Kattampally Road, Chirackal, Puthiyatharu, Kannur - 670 011 Appellant(s)
M.M. Saw Mills & Industries Adooparambu, Muvattupuzha, Ernakulam, Kerala 686 661 Appellant(s)
Century Timbers 9/74, Sea Port - Air Port Road, Kakkanad, Cochin - 682 030 Appellant(s)
V.S. Timbers Pvt. Ltd. Perumattom, Puthupady P.O., Muvattupuzha - 686 673 Appellant(s)
V.U.S. Timbers 8/546-A, Perumattom, Puthupady P.O., Muvattupuzha - 686 673 Appellant(s)
V.S. Export & Import VI/567-A, Perumattom, Puthupady P.O., Muvattupuzha - 686 673 Appellant(s)
Versus Commissioner of Customs, Cochin Custom House Cochin 682 009 Kerala Respondent(s)
Appearance:
Mr. M. Balagopal, Advocate Room No. 301, 4th Floor, DD Vyapar Bhavan, K.P. Vallon Road, Kadavanthra, Cochin - 682 020 Kerala For the Appellants
Mr. N. Jagdish, Mr. Pakshi Rajan & Mr. Mohd Yusuf, AR For the Respondents
Date of Hearing: 11/03/2015 Date of Decision: 11/03/2015 CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER
Final Order Nos. 20671-20711 / 2015
Per : B.S.V. MURTHY
The issue in all the appeals is common and therefore all the appeals are taken together and a common order is passed.
2. The issue involved is the conversion of quantity in Hoppus Ton into cubic meter and vice versa. In all these cases, timber logs were imported in Hoppus Ton whereas the sales were made in cubic meter. Appellants had discharged Special Additional Duty at the time of importation and after selling in the domestic market on payment of VAT, they filed refund claims for the amount of SAD paid by them as per Notification No. 102/2007. For conversion of Hoppus Ton quantity of timber to cubic meter, appellants had adopted a formula according to which the quantity of one Hoppus Ton of timber would be equivalent to 1.416 cubic meter. Lower authorities took a view that the appellants have come out with their own formula and they should have followed the international formula for conversion according to which one Hoppus Ton would have been equal to 1.8027 cubic meter and therefore the refund claim was reduced in the proportion of 1.416:1.8027.
3. The very same issue had already come up before this Tribunal and this Tribunal had passed a detailed order on this issue in the case of Commissioner of Customs, Mangalore Vs. Royal Timbers [2014 (313) E.L.T. 305 (Tri.-Bang.)]. There is a slight difference between the facts in the case of Royal Timbers and the case of present cases. In the case of Royal Timbers, the refund was sanctioned and subsequently demand was raised considering that the refund had been erroneously sanctioned. In these cases while sanctioning the refund itself reduced amount has been sanctioned.
4. The issue is not only be the subject matter of dispute which was considered by this Tribunal and a decision taken in favour of the assessee in the case of Royal Timbers and others but also before the VAT authorities who took up proceedings after noticing the proceedings initiated by Customs Authorities in Kerala. Learned counsel on behalf of the appellants submitted a copy of the Proceedings of the Intelligence Officer - 3 (Rapid Action) Dept. of Commercial Taxes, Ernakulam at Edappally. These proceedings were taken up consequent to writ petition filed by the timber traders before the Honble High Court of Kerala who directed a physical verification to be conducted in the presence of timber dealer and their clearing agents and the physical verification revealed that the quantity by adopting the formula of the timber traders came to 98.760m3 which was found on physical verification to be 97.770m3. If the international formula was to be adopted, the quantity would have been 125.682m3. On the basis of physical verification the intelligence officer came to the conclusion that there is no suppression in quantity of timber imported in timber logs from Mayanmar. This means that the quantity declared at the time of importation and subsequently sold by adopting the formula did not vary and therefore there is nothing wrong with the formula adopted.
5. Moreover the learned counsel also produced a copy of the letter of the Additional Principal Chief Conservator of Forests (Protection) dated 19.10.2011 which also shows that the formula followed by the appellants is correct.
6. In addition the learned counsel also submitted copies of orders-in-appeal No. 158-235 dated 02.07.2014 in case of J&J Timbers and 16 others, orders-in-appeal No. 245-254 dated 16.07.2014 in the case of M/s. Hillwood Timbers and 2 others, orders-in-appeal Nos. 265-272 dated 18.07.2014 in the case of M/s. J&J Timbers and 4 others. In all the orders-in-appeal, the Commissioner (Appeals) has ruled in favour of the importers. The Commissioner (Appeals) who passed the order is Commissioner (Appeals), Cochin. He has also cited the decision of Commissioner (Appeals) Bangalore while passing the order.
7. The above observations would show that the lower authorities at the level of Commissioner (Appeals) in Karnataka and Kerala, the Forest Department of Kerala and Karnataka and this Tribunal have all concluded in favour of the importers. That being the situation in these cases also the appeals have to be allowed with consequential relief to the appellants and I do so.
(Order pronounced in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER
iss
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