TMI Blog2014 (11) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Supreme Court in the case State of Tamil Nadu and other Vs. India Cement Ltd. (2011 (4) TMI 1080 - SUPREME COURT OF INDIA), as far as clarifications/circulars issued by the Central Government and the state Governments are concerned, they represent merely their understanding of the statutory provisions and those are not binding upon the Courts. Contentions of the appellants that notification No. 84/2010 was merely rectifying a mistake/unintended omission in notification No. 13/2010, is totally untenable because, as is evident from the said circular as far as the Government is concerned, there was no mistake or omission in the notification No. 13/2010. Appellants did not fall within the scope of exemption notification No.13/2010-Cus as the said Notification (No.13/2010-Cus) inter alia exempted all sports goods, sports equipment etc. when imported into India for the purpose of organising the Common Wealth Games 2010 from the whole of duty of custom leviable thereon and one of the conditions of the exemption was that the goods were imported by the Organising Committee of the Common Wealth Game 2010 or National Sports Federation in relation to the said Games 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 corresponding entry in column (3) of the said Table. TABLE S.No Description of goods Conditions (1) (2) (3) 1. (a) All sports goods, sports equipment and sports requisites; fitness equipments; team uniform/clothing; spares, accessories and consumables of the same including ammunition for shooting events; (b) Doping control equipment, Satellite phones/GPS, paging communication systems and other communication equipments; video/plasma screen, electronic score board for display; time control devices, stop watches; timing, scoring and result management systems; marquees; tents . (a)lmported by the Organising Committee of the Common Wealth Games, 2010, National sports federations in relation to Games, 2010; (b) the importer, at the time of clearance of the goods, produces a certificate to the Assistant Commissioner or Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ames 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 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, excluding gift items, souvenirs, mementoes and goods which have been consumed, shall be re-exported within three months from the conclusion of the games; and (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. 4. Broad casting equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 G.S.R. (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 makes the following further amendments in the notification of the Government of India in the Ministry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nic flying Equipment (Hawk equipment), equipment for tree canopy riggings with standard and essential accessories (e) Pyrotechnics - fireworks with monitors, triggering consoles, cables with essential and standard accessories (f)Helium gas (Through M/s INOX) (g) Sound Equipment - complete with speakers systems, audio controls, monitors, relay systems and replay systems with all standard and essential accessories (h)ReFlex mesh - plastic netting statistic code : 39269097 (i) Spreading trailer 2006 (j) Koro topmaker 2006 (k) John deere 5525 tractor 2007 (l) Turf laying and harvesting machinery and accessories (m) Ground protection - armour deck with and without holes with fixing equipments and cables with standard and essential accessories (n)Creative materials - cloth, inflatables, essential equipments, instruments with all standard and essential accessories for Handover Ceremony for Glasgow 2014. (ii) in column (3), in condition (a) after the words and figures the Games, 2010 or the words and figures suppliers or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the judgment of the Hon'ble Supreme Court in the case Zile Singh Vs. state of Haryana and others 2004 (8) SCC 1 regarding principles of interpretation to drive the point that Notification No.28/2010-Cus should be given retrospective effect and to stress that it is not necessary that an express provision should be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication. The appellants painstakingly argued that in view the principle laid down by the Hon'ble Supreme Court in the said judgment, the notification No.84/2010-Cus is required to be given retrospective effect to extend the benefit of Notification No.13/2010-Cus to the appellants. (v) They also cited the judgment of Hon'ble Supreme Court in the case of Government of India and Others Vs, India Tobacco Association 2005 (7) SCC 396, wherein it has been stated that there cannot be any doubt whatsoever that when a person is held to be eligible to obtain the benefit of exemption Notification, the same should be construed liberally. In this particular case the Hon'ble Supreme Court came to a finding that the amended Notification only intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective effect. As the appellants had cited a CBEC circular dated 13.08.2010 to stress that Commonweal Games 2010 was an event of national importance, it may be appropriate to cite another CBEC circular No. 26/2012 dated 09.08.2010 which categorically stated that suppliers/contractors/vendors appointed by the OC, CWG were not eligible for the benefit under Notification No. 13/2010-Dus dated 19.02.2010. We may mention here that as has been stated by the Hon'ble Supreme Court in the case State of Tamil Nadu and other Vs. India Cement Ltd. (manu/SC/0458/2011), as far as clarifications/circulars issued by the Central Government and the state Governments are concerned, they represent merely their understanding of the statutory provisions and those are not binding upon the Courts. Respectfully agreeing with the said observations of the Hon'ble Supreme Court, it can be stated that though the said circular is not binding on CESTAT, it certainly conveys the Central Government's understanding of the applicability of Notification No. 13/2010. Thus the contentions of the appellants that notification No. 84/2010 was merely rectifying a mistake/unintended omission in notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutes; none of them deal with the interpretation of Customs Act though. And even presuming (without admitting) that it is so, none of these case laws cited by them come to their rescue as is evident from the discussion above. Nevertheless it is pertinent to mention that with regard to the interpretation of exemption notifications, there is a rich body of judicial pronouncements which is essentially in conformity with what the Hon'ble Supreme Court noted in the case of Novopan India Ltd. (supra) that the exemption being in the nature of exception is to be construed strictly at the stage of determination whether the assessee falls within its terms or not and in case of doubt or ambiguity the benefit of it must go to the state but once a provision is found applicable to the assessee full effect must be given to it. It is evident that in the present case there is no doubt that the appellants did not fall within the scope of exemption notification No.13/2010-Cus as the said Notification (No.13/2010-Cus) inter alia exempted all sports goods, sports equipment etc. when imported into India for the purpose of organising the Common Wealth Games 2010 from the whole of duty of custom levia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
