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2015 (11) TMI 1505 - CESTAT KOLKATA

2015 (11) TMI 1505 - CESTAT KOLKATA - 2016 (335) E.L.T. 357 (Tri. - Kolkata) - Claim of exemption from CVD - import of ‘Red Fine Standard Grade Murate of Potash (MOP) - whether the appellant are eligible to the benefit of Notification No.12/2012-CE dated 17.03.2012 - Held that:- We do not find that the benefit of excise Notification No.12/2012-CE dated 17.03.2012 has been denied to the appellant, recording any observation that the appellant are not eligible to the benefit of both the Notificatio .....

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entire quantity of imported MOP was meant and in fact had been used in the manufacture of fertilizers; in support, the appellant have produced a certificate issued by their statutory auditors. Further, it is their contention that the benefit of concessional rate of Basic Customs Duty @ 5% was allowed only on the condition that the imported MOP had been used in the manufacture of fertilizers, therefore, it cannot be said that the imported MOP were not used in the manufacture of fertilizers, but s .....

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the appellant, has not been rebutted by the revenue by producing contradictory evidences, hence, in our opinion, it is safe to conclude that they have complied with the condition of Notification No.12/2012-CE dated 17.03.2012; accordingly, eligible to the benefit of the said Notification. - Decided in favour of assessee. - Appeal Nos. CA-75221-75229/15 - ORDER NO.FO/A/75665-75673/2015 - Dated:- 17-11-2015 - Dr. D.M.Misra, Member(Judicial) And Shri H.K.Thakur, Member(Technical) For the Petitione .....

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e Murate of Potash (MOP) in bulk (cargo imported for use as manure or manufacture of complex fertilizers) classifying the said product under CTH 3105 2000of CTA,1975. The appellant claimed benefit of Notification No.12/2012-CUS dated 17.03.2012 as amended whereunder the rate of Basic Customs Duty(BCD) was 5% against applicable tariff rate; for Additional duty (CVD) they claimed exemption under Notification No.12/2012-CE dated 17.03.2012. While assessing the said Bill of Entry, the Customs author .....

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the Writ Petition No.900 of 2014. The Hon ble High Court while disposing the Writ Petition, inter alia, directed the ld. Commissioner (Appeals) to dispose the appeals preferably by 31st December, 2014. The ld. Commissioner (Appeals) after hearing the Appellant rejected their appeal observing that the appellants are not eligible to the benefit of Notification No.12/2012-CE dated 17.03.2012 and required to pay 1% CVD. Hence, the present appeals. 3.1 Ld. Advocate Shri Ravi Raghavan appearing for t .....

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-CUS dated 17.03.2012 and CVD at nil rate of duty availing the benefit under Notification No.12/2012-CE dated 17.03.2012. It is their contention that as there was difficulty in the EDI system in accepting both the said Notifications together, the Systems Deptt. of CBEC has directed for accepting manual Bill of Entry filed by the respective assesses claiming benefit of both exemption Notifications i.e. 12/2012-Cus. and 12/2012-CE in the same Bill of Entry. He has produced the office noting(pages .....

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t. The explanation to section 3(1) also clarifies that the expression excise duty for the time being leviable on a like article, if produced or manufactured in India means the excise duty leviable on the product, if the product is manufactured or produced in India. The only exception to the explanation is if the imported product is not manufactured or produced in India also then the duty is leviable should be similar to the class of product it belongs to and if there are different rates then t .....

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otassium Chloride classifiable under CTH 3105 2000, attracts nil duty as per said Notification No.12/2012-CE. Therefore, in view of section 3(1) of Customs Tariff Act, 1975, the applicable CVD would accordingly be nil. It is his contention that the amending Notification No.46/2012-CUS dated 17.08.2012, wherein CVD @1% has been levied on MOP is palpably wrong and erroneous inasmuch as Notification No.12/2012-CE already provides nil rate of duty. Referring to the Circular issued by TRU bearing F.N .....

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/2012-CE, in terms of section 3(1) of Customs Tariff Act, 1975. 3.3 Further assailing the observation of the ld. Commissioner(Appeals) that they could not satisfy the condition of end use of MOP i.e. used in relation to manufacture of fertilizers, the ld.Advocate submitted that no such condition could be read into the exemption Notification No.12/2012-CE dated 17.03.2012. However, despite there being no requirement of end use certificate, the appellant have duly procured the end use certificate .....

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ll of Entry and not protested against remaining eight Bills of Entry, the ld.Advocate submits that filing of Appeal, after payment of CVD, itself evident that they did not agree with the assessment denying them the benefit of Notification No.12/2012-CE dated 17.03.2012. In support, he has referred to the following judgements of this Tribunal :- 1) CC, Chennai v. Nandana International - 2005(284) ELT 320(Tri-Chennai) 2) Hutchison Max Telecom Pvt.Ltd.v.CCE, Mumbai 2004(165)ELT 175(Tri.Del.) 3) Bay .....

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reby it could be ascertained that the said imported MOP are used only in the manufacture of fertilizers. It is his contention that end use certificate has become relevant in the present case in view of the direction of the Hon ble High Court while disposing the Writ Petition filed by the appellant challenging the assessment order before the Honble Calcutta High Court. 5. Heard both sides and perused the records. The limited question involved in the present case is whether the appellant are elig .....

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3.2012 198. 31 Muriate of potash, for use as manure or for the production of complex fertilisers 5% 1% Notification No. 12/2012-CE dated 17.03.2012 127 31 All goods, other than those which are clearly not to be used in the manufacture of other fertilizers, whether directly or through the stage of an intermediate product. Nil - 5.1 On a careful reading of the observation recorded by the ld.Commissioner(Appeals) at para 5 of the impugned order, we do not find that the benefit of excise Notificatio .....

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n the manufacture of fertilizers then obviously the benefit of Notification No.12/2012-CE dated 17.03.2012 would not be applicable. Further, interpreting Section 3(1) of the Customs Tariff Act, 1975, the ld. Commissioner(Appeals) recorded a finding stating that additional duty no doubt would be equal to the rate of Central Excise duty, but in the present case, the appellant failed to produce any certificate/evidence establishing the use of the imported goods in the manufacture of fertilizers; th .....

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However, rebutting the said finding of fact, claimed that the entire quantity of imported MOP was meant and in fact had been used in the manufacture of fertilizers; in support, the appellant have produced a certificate issued by their statutory auditors. Further, it is their contention that the benefit of concessional rate of Basic Customs Duty @ 5% was allowed only on the condition that the imported MOP had been used in the manufacture of fertilizers, therefore, it cannot be said that the impo .....

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