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Commissioner of Central Goods & Service Tax, Earlier Commissioner of Central Excise & Service Tax Versus Continental Engines Ltd.

2017 (11) TMI 878 - RAJASTHAN HIGH COURT

N/N. 23/2003 dt. 31.03.2003 - Whether the ld. CESTAT was correct in law in extending the benefit of concessional rate of duty to the assesse in respect of scrap sale subject to the approved limits of SION fixed by the DGFT, when no such norms were fixed during the relevant period when such scrap were sold which is in violation of conditions prescribed under N/N. 23/2003 dt. 31.03.2003? - Held that: - The contention raised by the respondent is required to be accepted in view of the fact that .....

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7 - Dated:- 8-11-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Siddharth Ranka For the Respondent : Mr. P.K. Kasliwal with Mr. Priyesh Kasliwal JUDGMENT 1. In these appeals common questions of law and facts are involved, hence, they are decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal preferred by the assessee. 3. Counsel for the appellant has .....

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he CESTAT ought to have remanded matters to Original Adjudicating Authority after a pasage of 13 years since issue of first SCN, passage of 11 yers since passing of OIO and 9 years after issue of OIA? 4. Counsel for the appellant Mr. Siddharth Ranka has taken us to the orders of Commissioner and the CIT(A) and contended that in spite of the concurrent finding of both the authorities, the Tribunal has seriously committed an error in allowing the appeal inasmuch as without considering the notifica .....

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fixed and approved under duty exemption scheme by the Development Commissioner for availing benefit of concessional rate of duty in terms of the annexure No. 23/2003-CE dated 31.03.2003. The condition no. 2 of the annexure to above notification stipulated that the benefit was available only if the goods were cleared in Domestic Tariff Area in accordance with para 6.8 (d) of the Exim Policy, the sale of waste/scrap/remnants by units not entitled to DTA sale shall be on payment of full duties. App .....

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cate in respect of norms fixed by the Development Commissioner. Thus the issue before me to decide is whether the appellant was eligible to clear scrap in question at concessional rate of duty fulfilling the conditions of notification no. 23/2003-CE dated 31.03.2003 read with para 6.8 of the Export Import Policy. 7. I observe that the appellant has not disputed the requirement of fixation of input and output norms in terms of para 6.8 of EXIM Policy at the relevant time for availing benefit of c .....

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ioner for availing benefit of concessional rate of duty under notification no. 23/2003-CE dated 31.03.2003 read with Paragraph 6.8 of the Export and Import Policy. I observe that clearance of the scrap in question at concessional rate of duty cannot be made in terms of the above provisions without fulfillment of statutorily stipulated conditions. It is well settled that exemption notifications are to be given strict interpretation. As such the appellant was not entitled to clear the scrap at con .....

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ppellant that the adjudicating authority should have waited for the report of the Development Commissioner is not tenable in as much as till to day they could not submit the required certificate pertaining to the clearances effected even more than four years ago. I observe that the relevant provisions as discussed above require fulfillment of the conditions at the time of clearances of the goods for availing concessional rate of duty. The department has waited for a fairly reasonable time and th .....

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s discussed above. The ratio of the judgments relied upon by the appellant are not applicable to the issue at hand in the given facts & circumstances. The Circular No.21/95-Cus., dated 10.03.1995 referred to by the appellant has no concern with the issue involved in the instant case as the said circular was on a totally different subject. I observe that the appellant continued to pay concessional rate of duty in spite of knowing that they do not have the required approved norms for the impug .....

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for clearance of scrap. He brought to our notice the letter dt. 20.12.2004 issued by the Assistant Development Commissioner of Noida Special Exonomic Zone in which the input output norm has been fixed on the basis of the request made by the appellant vide their letter dt. 29.03.2012. He further brought to my notice that for periods subsequent to those covered by the appeals presently under consideration, the Commissioner (Appeals) has considered the SION norms and had set aside the demand for c .....

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ver, the same has since been fixed by the DGFT vide their letter dt. 23.2.2009. The concessional rate of duty @ of 30% envisaged under Notification no. 23/2003 dated 31.3.2003 is available in cases where such scrap has been allowed to be cleared in DTA. The differential duty has been demanded for different periods by Revenue by taking that view that since no norms were available at the time of clearance of the scrap., the same are to be considered as cleared without authorization and hence not e .....

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ubject to the approved limits of SION fixed by the DGFT. Since the issue is pending for a very long time I direct that this exercise will be completed within a period of two months from the date of receipt of copy of the present order. The appellant may be permitted to submit necessary details for verification and any other relevant evidence may be admitted as per law. 6. It is contended that the contention as has been raised by the appellant was never raised before the Tribunal, in that view of .....

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lied upon the decision of the Supreme Court in the case of Bony Polymers Pvt. Ltd. Vs. Commissioner 2017 (345) E.L.T. A69 (SC) while confirming the order of Delhi Tribunal held as under:- Having gone through the records of the case, we are of the considered opinion that the appeal, being devoid of any merit, deserves to be dismissed and is dismissed accordingly. The Appellate Tribunal in its impugned order had held that since Advocate DTA Sales permission granted under Para 6.8(k) of Foreign Tra .....

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irector (Cost) in his report dated 1-2-2010 find that applicants are not taking in consideration the Selling and Distribution Expenses, and fixed overhead expenses, while arriving at the assessable value of goods. Further, we find that applicant cleared scrap to DTA for availing benefit of Notification No. 23/2003-C.E. : MANU/EXCT/0003/2003, dated 31-3-2003, Prima facie we find merit in the contention by the Revenue that applicant had not fulfilled the condition of the benefit of notification. I .....

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s. Compliance is to be reported on 27-9-2013. 9.2. He has also relied upon the decision in case of Meneta Automotive Components Pvt. Ltd. vs. C.C.E. & S.T. Rohtak reported in 2013 (292) E.L.T. 49 (Tri.-Del.) wherein it has been held as under:- We find that under the Notification No. 21/2002- Cus., dated 1-3-2002 the melting scrap of Iron & steel is exempted on S. No. 200 of the notification. There is no condition in the notification for availing the exemption. Prima facie the applicant h .....

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or the period for six months. We note that applicant has applied for fixation of ad hoc norms to the Development Commissioners only on 4-7-2009 whereas the applicant was selling their scrap to DTA since 29- 3-2008. We are of prima facie view that prior to 4- 7-2009 the applicant is not eligible for the benefit of exemption from SAD. Taking into consideration the amount of SAD involved for the period prior to 4-7-2009 and also the issue to time limitation contended by the applicant, we direct the .....

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ity of scrap cleared by the assessee at concessional rate of duty in DTA are within norms or not. And also to verify detained charts submitted by assessee to support their contention. The Assistant Commissioner Central Excise Division Bhiwadi has verified charts submitted by assessee and submitted their report vide their letter C.N. V (Misc.) 02/Adj/II/2009/3187 dated 14.03.2011 that the matter has been reexamined in terms of para 6 of Order in appeal No. 202(DK)CE/JPR-I/2009 dated 24.08.2009 pa .....

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