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TMI Blog2014 (11) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 (resulting in the consequential duty liability of Rs. 65834557/-). The Commissioner (Appeals) vide the impugned order upheld the said Order-in-Original and hence this appeal before CESTAT. 3. Before we proceed further, it is useful to reproduce Notifications Nos.13/2010-Cus dated 19.02.2010 and Notification No. 84/2010-Cus dated 27.08.2010: Notification No.13 /2010-Customs New Delhi, the 19th February, 2010 G.S.R. 94 (E).- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (2) of the Table below and falling under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for the purpose of organising the Common Wealth Games, 2010(hereinafter referred as Games), from the whole of the duty of customs leviable thereon which is specified in the said First Schedule and from the whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act, subject to the conditions specified in the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter, at the time of clearance of the goods, furnishes an undertaking that all such goods shall be re-exported within three months from the conclusion of the Games. 3. (a) All sports goods, sports equipment and sports requisites; spares, accessories and consumables of the same, (b) Food stuff, energy drinks, isotonic, tonic water(including alcoholic drinks), (c) Pharmaceuticals and medical consumables, (c) fitness equipments; team uniform/ clothing, (d) dining/kitchen items, office consumables stationery and gift items, souvenirs, mementoes, (e) Goods for display / exhibition / stalls /reception a)lmported by Common Wealth Games Federation Members or Common Wealth Games Associations or participating athletes in relation to Games, 2010: (b) the importer, at the time of clearance of the goods, produces a certificate to the Assistant Commissioner or Deputy Commissioner of Customs, as the case may be from the Joint Director General (Coordination) or Director (Coordination) of the Organizing Committee of the Commonwealth Games, 2010, indicating- (i) the name and address of the importer and the description, quantity and value of the said goods; and (ii) that the said goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of clearance of the goods, produces a certificate to the Assistant Commissioner or Deputy Commissioner of Customs as the case may be from the Joint Director General (Coordination) or Director (Coordination) of the Organizing Committee of the Commonwealth Games 2010, indicating- (i) the name and address of the importer and the description, quantity and value of the said goods; and (ii) that the said goods are required for the purpose specified in condition (a) above; (c) the importer, at the time of clearance of the goods, furnishes an undertaking that,- (i) all such goods other than those consumed during the shooting events, shall be re-exported at the time of final departure of the participating athletes; (ii) a utilisation certificate for the goods consumed shall be furnished from the Joint Director General (Coordination) or Director (Coordination) of the Organizing Committee of the Games, 2010. and (d) Import of such arms and ammunition shall be subject to the applicable licensing conditions imposed by the Directorate General of Foreign Trade and approvals of Ministry of Home Affairs. Notification No. 84/2010-Customs New Delhi, the 27th August, 2010 &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its failure to do so." (B) against S. No. 2, - (i) in column (2), after the words 'under Overlays' the following shall be inserted, namely:- "and the following goods and equipment,- fa) Stage lighting and searchlights with control panels, monitors, cables, trusses, pulleys with standard and essential accessories, (b) Communication system-wired intercom system complete with radio instruments or batteries or cables or monitors or speakers with all standard and essential accessories; (c) Projectors, cameras, monitors, watchouts, cables with standard and essential accessories; (d) Aerial rigging for staging - Scenic flying Equipment (Hawk equipment), equipment for tree canopy riggings with standard and essential accessories &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; (b) in condition (c), the following proviso shall be added, namely:- "Provided that in the case of imports by suppliers or contractors or vendors or sub-vendors of the Prasar Bharati or of the broad casting right holders, the Prasar Bharati shall, at the time of clearance of the goods, furnish an undertaking that the imported items other than consumables, shall be re-exported within three months from the conclusion of the Games and shall pay an amount equal to the duty leviable on the imported goods but for the exemption under this notification in the event of its failure to do so." (E) against S. No.5, in column (3), in condition (a), after the words "Imported by", the words and figures "Organising Committee of the Common Wealth Games, 2010 or '" shall be inserted; 4. The appellants in their submissions strenuously argued that the Notification No. 84/2010-Cus dated 27.08.2010 should be read into Notification No.13/2010-Cus dated 19.02.2010 retrospectively with effect from 19.02.2010 as the later notification was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... former statute was passed. (vi) The appellants also referred to the case of the Bangar Immunity Company Ltd. Vs. State of Bihar and other 1995(2) SCC 603 which stated that the adjudicating authority first should apply its mind to the various factors including considering the mistake that the legislation intended to rectify. 5. The Ld. DR on the other hand cited the judgments of the Hon'ble Supreme Court in the case of Novopan India Ltd. Vs. Collector of CCE and Custom, Hyderabad - 2002-TIOL-89-SC-CX-LB wherein it was observed the an exemption being in the nature of exception is to be construed strictly at the stage of determination whether assessee falls within its terms or not and in case of doubt or ambiguity the benefit must go to the state. Similarly in the case Liberty Oil Mills Pvt. Ltd. Vs. Collector CCE Bombay 1995 (75) ELT 13 (SC) the Hon'ble Court observed that ambiguity or doubt in an exemption will be resolved in favour of the revenue and not in the favour of assessee. The Ld. DR also referred to the judgment of CESTAT Delhi in the case IVES Drugs (India) Pvt. Ltd. VS. CCE Indore 2011 (264) ELT 73 (Tri-Del.) which following the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation". The Hon'ble Supreme Court in the said judgment had however held that the presumption against retrospective operation is not applicable to curative or declaratory statute. It is evident that Notification No.84/2010 neither expressly nor by implication conveyed even remotely any intention of its retrospective applicability. As is clear from the CBEC circular dated 09.08.2010 (supra) the notification 84/2010 was in no way intended to cure an acknowledged negligence or omission in Notification No.13/2010. The appellants' reference to the Hon'ble Supreme Court's decision in the case of Government of India and others Vs. Indian Tobacco Association (supra) is also not helpful in the present case as the appellants were clearly and unambiguously not covered under Notification No.13/2010-Cus, and Notification No. 84/2010-cus, as discussed above, was not intended to supply any omission, obvious or otherwise. In that case (of Indian Tobacco Association) the Hon'ble Supreme Court came to a clear f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Notification No.13/2010 and hence not eligible for the benefit thereof. As a matter of fact, as stated earlier even the Government's intention was not to cover them under the said notification as became evident by the Board circular referred to earlier. It was only on 27/08/2010 vide Notification No. 84/2010 that the suppliers or contractors or vendors or sub-vendors of the Organising Committee of the Common Wealth Games 2010 became eligible for the benefit of Notification No.13/2010-Cus as amended vide Notification No.84/2010-Cus. It is also to be noted that the words and figures "suppliers or contractors or vendors or sub-vendors of the Organising Committee of the Common Wealth Games 2010" were inserted in condition A in column 3 of the table appended to the said Notification (13-2010-Cus) after the words and figures Common Wealth Games 2010". This obviously means that these categories of importers were included for the first time on 27/08/2010 and therefore the appellants' which are in the category of suppliers or contractors or vendors or sub-vendors of the Organizing Committee of the Common Wealth Games 2010 were not eligible for the benefit of exemption Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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