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2016 (11) TMI 1117 - CESTAT CHENNAI

2016 (11) TMI 1117 - CESTAT CHENNAI - TMI - Levy of SAD - DEPB Scheme - whether the goods imported by appellants availing exemption under Notification No.34/97 - Cus. dt.7.4.1997 can claim exemption from levy of special additional duty of customs under Notification No. 34/98-Cus. dated 13.06.98 without debiting the same to the DEPB Pass book and without fulfilling condition prescribed by Para 2 of the Notification No.34/97 when claim of exemption is made under Sl.No.13 of the Notification No.34/ .....

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ss Book. The Circular No.49/98.Cus. dated 20.7.1998 issued by CBE&C explained the position more elaborately and manner of debit entry is explained therein by a mathematical example - In absence of any logical reason shown by appellant, its plea that the phrase “subject to the conditions if any, specified in the said Notifications in relation to such goods:” appearing under Sl.No.13 of the Table appended to the Notification No.34/98 was redundant or surplusage, is misconceived. The conditions .....

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vailing exemption under Notification No.34/97 - Cus. dt.7.4.1997 can claim exemption from levy of special additional duty of customs under Notification No. 34/98-Cus. dated 13.06.98 without debiting the same to the DEPB Pass book and without fulfilling condition prescribed by Para 2 of the Notification No.34/97 when claim of exemption is made under Sl.No.13 of the Notification No.34/98. 2. The goods imported by the appellant prior to 01.08.1998 in terms of Bill of Entry dated 23.06.98 and 19.06. .....

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y sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods imported into India from - (1) The whole of the duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975); and (2) The whole of the additional duty leviable under section 3 of the said Customs Tariff Act where specifically claimed by the importer, subje .....

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provisional credit in the said Duty Entitlement Pass Book by the Licensing authority to be set-off by the credits earned on exports to be subsequently effected; (iii) The said Duty Entitlement Pass Book is produced before the proper officer of Customs for debit of the duties leviable on the goods but for exemption contained herein : Provided that exemption from duty shall not be admissible if there is insufficient credit in the said Duty Entitlement Pass Book for debiting the duty leviable on t .....

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34/97-cus dated 7.4.97. For convenience of reading, the relevant part of the notification No. 34/98-cus dated 13.06.98 is reproduced as under: Exemption from special additional customs duty to certain specified goods In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), read with sub-clause (a) of clause 107 of the Finance (No. 2) Bill, 1998, which clause has, by virtue of the declaration made in the said Finance Bill under the Provisional C .....

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the special additional duty leviable thereon by virtue of the provisions of sub-clause (a) of clause 107 of the said Finance Bill : Provided that in respect of the goods specified against S. Nos. 2, 3 and 4 of the said Table, the exemption under this notification shall be subject to the conditions, if any, subject to which the goods are exempt either partially or wholly from the duty of customs leviable thereon which is specified in the First Schedule to the said Customs Tariff Act. xxx xxx xxx .....

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granted by Notification No. 34/98-cus dated 13.06.98 read with notification No. 48/98-cus dated 17.07.98 nor any duty element of above nature is to be debited to DEPB Pass Book. Therefore the debit made to DEPB Pass book of the appellant may be directed to be reversed. The Notification No. 48/98-Cus, dated 17.7.98 omitted Sl. No. 13 of the Notification No. 34/98-Cus. dated 13.7.98 introducing Sl.No.14 to that notification and in so far as that is relevant for this case, is extracted as under:- .....

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on No.34/97-Cus. Dt.7.4.1997. Consequently applicability of the conditions prescribed by Clause 2 of Notification No.34/97-Cus. Dated 7.4.97 no more became necessary with effect from 1.8.98 in respect of exports made in terms of Notification No.56/98. However, Tribunal is not concerned in this case about application of that Notification since imports were made prior to 1.8.1998 and appellants claim was not there under. Grant of a notification is effective from the date that is issued but not re .....

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he aforesaid four notifications explains the position of law as under:- (1) Notification No. 34/97-cus dated 7.4.97 granted exemption to the subject goods from levy of basic customs duty and additional duty of customs debiting the duty element in DEPB Pass Book. (2) Notification No. 34/98-cus dated 13.7.98, granted exemption to the subject goods from levy of special additional duty of customs subject to the conditions prescribed by the notification No.34/97-Cus. Dated 7.4.97 in terms of Sl.No.13 .....

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y be noticed that nonfulfillment of three conditions prescribed by para-2 of the Notification No.34/97-Cus. Dt.7.4.1997 denies the grant of Notification No.34/98-Cus. Dated 13.7.98. It may be stated that the phrase subject to the conditions, if any, specified in the said notification in relation to such goods: - appearing under Sl.No.13 of the Notification No.34/98-Cus. dated 13.7.1998 is neither surplusage nor otios. Grant of exemption from special additional duty of customs was permitted debit .....

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dated 13.6.98. We fail to understand the logic of such argument when the primary notification 34/97-Cus, date 7.1.1997 was basis to grant exemption to the same goods from special additional duty of customs under Notification No.34/98-Cus, dated 13.6.98 and the notification No. 34/97 was integral part thereof with the use of the phrase subject to the conditions, if any, specified in the said notifications in relation to such goods: in Sl.No.13 of the Table appended to the Notification No.34/98-C .....

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f customs due to use of the words such goods in Sl.No.13 of the Table appended to Notification in No.34/98-Cus and subject to conditions of Notification No.34/97-Cus. Therefore the condition of the basic notification applies to the grant of Notification No.34/98-Cus, dated 13.6.98. In absence of any logical reason to read the notification No.34/98 in isolation of the Notification No.34/97, the decision of Bangalore Bench in Mono Filament case cannot be said to be precedent being per incurium. 8. .....

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urt in the case of UOI and Others Vs. Modi Rubber Ltd. And others 1986 (25) ELT 849 (S.C.) held that when the exemption notification was issued, the Govt. could not be presumed to have projected its mind into the future and granted duty exemption in respect of excise duty which may be levied in the future without considering the nature and extent of such duty and the object and purpose for which such levy may be made and without taking into account the situation which may be prevailing then. Thi .....

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