TMI Blog2022 (11) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... (34) of the Customs Act, 1962 who is empowered to demand duty payable by the third respondent to recover duty under Section 28 of the Customs Act, 1962. Show Cause Notices dated 11.02.2001 and 18.02.2002 seeking to recover the customs duty together with interest thereon issued by the second respondent Commissioner of Central Excise, Chennai III, Commissionerate was within the four corners of law - the second respondent Commissioner of Central Excise, Chennai III, was also competent authority to decide and pass order on the improts made by the petitioner under the resepctive customs notification in terms of Rule 8 of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Since the order was passed by the second respondent, Commissioner of Central Excise, Chennai III, appeal was only to be filed before the Tribunal in Form AE-3 under Section 35(B) of the Central Excise Act, 1944 and not under Section 129(A) of the Customs Act, 1962. Therefore, the Customs Appeal filed by the petitioner in C/104/03/MAS against an order passed by the Commissioner of Central Excise, Chennai III was not proper - The second respondent Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the Chennai Port. The third respondent availed the benefit of concessional rate of duty at 5% on the imports made under Notification No.64/95-Cus dated 16.03.1995 as amended by Notification No.48/96-Cus dated 23.07.1996, 13/97-Cus dated 01.03.1997 and 25/99-Cus dated 28.02.1999 as amended by Notification No.20/2001-Cus dated 01.03.2001. 5. Under such circumstances, two show cause notices were issued to the third respondent by the second respondent as detailed below:- S.No. Show Cause No. and Date Particulars Demand 1 38/2001 11.12.2002 Plain Polypropylene/polyester film Rs.2,92,88,507/- 2 9/2002 18.02.2002 Plain Polypropylene/polyester film Rs. 55,59,982/- 6. These show cause notices were issued by the second respondent Commissioner of Central Excise, Chennai III, Commissionerate, within whose the jurisdiction, the third respondent was registered as a Central Excise Assessee. These show cause notices ultimately culminated in Order in Original No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the said Rules and not otherwise. As there is no allegation in the Show Cause Notice about any misuse by M/s.PANEL, even by invoking the said Rule 9 of Customs, ( Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) this Show Cause Notice cannot be issued by Commissioner of Central Excise. 10. On merit, I find the allegation of the department is that M/s.PANEL are not eligible for the benefit of Notification No.64/95 Cus dated 16.03.1995 as amended by Notification No.48/96 Cus dated 23.07.1996, Notification No.13/97 dated 01.03.1997 and Notification No.25/99 Cus dated 28.02.1999 as amended inasmuch as they had imported corona treated biaxially oriented polypropylene/polyester film instead of plain plastic film of thickness 12 microns or below which alone is eligible for the concessional rate of customs duty in terms of the above mentioned Notifications. 11.The assessee (M/s.PANEL) have contested the notice by stating inter alia, that :- a) For the purpose at manufacture on electronic capacitor grade metalized plastic film, the input has to be necessarily a biaxially oriented polypropylene film subjected to corona treatment, and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Customs concluded that there was no error in the show cause notice issued by the Central Excise Authorities as there was a dual control both by the Customs and Excise Department in terms of Customs Import of Goods at Concessional Rate at duty for Manufacture of Excisable Goods Rules, 1996 . 8 . Under such circumstances, the Board authorized the second respondent Commissioner of Central Excise III Commissionerate to file a statutory Appeal before the Customs, Excise and Service Tax, Appellate Tribunal in E/786/03/MAS. Thus, an appeal came to be filed against the Order in Original No.15/2002 dated 31.07.2002 passed by the second respondent Commissioner of Central Excise, Chennai III Commissionerate dated 15.10.2003 before the Tribunal. By a separate order dated 31.10.2007 vide Final order No.1409 of 2007 in E/786/MAS, the Customs, Excise and Service Tax Appellate Tribunal dismissed the appeal with the following observations:- 6. We have carefully studied the case records and the submissions by both sides. We find that the Commissioner of Customs, Chennai or proper officers subordinate to him are the authorities competent to demand duty short levied on goods impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of Section 2(34) of the Customs Act, 1962. The impugned order of the Tribunal by the first respondent stating that the impugned order is well reasoned and requires no interference. 11. It is submitted that against the order in Original No.15/2002 dated 31.07.2002 passed by the Commissioner of Central Excise, Chennai-3 within whose jurisdiction the petitioner s factory was situated. Two appeals were filed as mentioned the above under the provisions of the Central Excise Act, 1944 and the Customs Act, 1962. 12. On behalf of the third respondent, it was submitted that even if the order passed by the Commissioner of Central Excise was incorrect, both the Customs Department and Central Excise Department have taken a chance by filing the statutory appeals before the Appellate Tribunal . It is therefore submitted that the present writ petition is liable to be dismissed as the third respondent has been subjected to appeal. 13. We have considered the arguments advanced by the learned counsel for the petitioner ; learned Standing counsel for the second respondent and the learned counsel for the third respondent. 14. Two show cause notices came to be issued by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, Chennai III, appeal was only to be filed before the Tribunal in Form AE-3 under Section 35(B) of the Central Excise Act, 1944 and not under Section 129(A) of the Customs Act, 1962. Therefore, the Customs Appeal filed by the petitioner in C/104/03/MAS against an order passed by the Commissioner of Central Excise, Chennai III was not proper. 20. It is noticed that the Central Excise Appeal in E/786/03/MAS dismissed. The second respondent Commissioner of Central Excise, Chennai III ought to have filed an appeal against final order No.1409 of 2007 dated 31.10.2007 of the first respondent, Appellate Tribnal under Section 35 G of the Central Excise Act, 1944. 21. Leakage of revenue by the third respondent cannot be condoned. The third respondent cannot benefit from such confusion regading the jurisdiction. Therefore, it is for the second respondent Commissioner of Central Excise, Chennai III to take steps to ameliorate the situation, by filing appeal, if advised. 22. While dismissing the writ petition, we make it clear that the observation contained in the impugned order dated 23.01.2004 casting aspersion on the then Commissioner of Customs was however unnecessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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