2017 (11) TMI 878 – RAJASTHAN HIGH COURT – 2018 (359) E.L.T. 358 (Raj.) – 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?
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Held that: – The contention raised by the respondent is required to be accepted in view of the fact that while considering the matter, the Tribunal has specifically observed that demand for differential duty since was dropped in respect of subsequent period – Tribunal was correct in holding that Since the input output norms have since been fixed by the DGFT the benefit of concessional rate for the scrap will be available to the appellants.
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The view taken by the Tribunal is just and proper – appeal dismissed – decided
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ns prescribed under Notification No. 23/2003 dt. 31.03.2003? ii) Whether the 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 notification which came much prior and without considering the observations made by authority which reads as under:- 6. I observe that the issue involved in all the three appeals is common with regard to availability of concessional rate of duty on the scrap cleared by 100% EOU (i.e. the appellant) in terms of notification no. 23/2003-CE dated 31.03.2003. the department has denined the benefit to the appellant on the ground that i
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of personal hearing held on 07.11.2007 for submitting the required certificate 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 concessional rate of duty on the scrap in question cleared by them in DTA under notification no. 23/2003-CE dated 31.03.2003. The contention of the appellant that they had applied to the Development Commissioner for fixing inputoutput norms but till date no norms were fixed by the Development Commissioner in their case does not help the appellant in as much as they cleared the scrap in question without fulfillment of the re
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d the required certificate will be submitted soon. The contention of the appellant 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 the case cannot be kept open sine die. The request of the appellant made during the course of personal hearing for allowing one month s time for getting the norms fixed by the Development Commissioner has since elapsed on 7.12.2007. That contention that the jurisdictional Range Officer had submitted a report to the Development Commissioner confirming the approx. wastage of 10% also cannot help them. The Range Officer is not
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rap during disputed period, subsequently the DGFT has fixed the SION norms 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 confirmation of differential duty and remanded the matter to the original authority for de novo decision in the matter. In line, with the above remand order of Commissioner (Appeals), the original authority has since dropped the demand for differential duty in respect of subsequent period. Accordingly, he prays that the period covered by the present appeal may also be decided in their favour. 5. At the time of clearance of
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d to extent the benefit of concessional rate of duty in respect of scrap subject 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 the matter, in the appeal u/s 35G, no substantial question of law arises inasmuch as no such foundation was laid before the Tribunal. 7. We have heard counsel for both the sides. 8. The contention raised by the respondent is required to be accepted in view of the fact that while considering the matter, the Tribunal in para 3 as reproduced hereinabove has specifically observed that demand for differential duty since was dr
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he verification done by the Deputy Director (Cost) CE Pune-I. The Deputy Director (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. In view of these circumstances, we find that applicant had failed to make out a case for total waiver of duty. Keeping in view the facts and circumstances of the case, the applicants are directed to deposit an amount of ₹ 10,00,000/- lakhs in addition to the amount already deposited within eight weeks for hearing of the appeal. On deposit of the above mentioned amount, the pre-deposit of remaining amount of dues are w
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s not covered by the norms Development Commissioner may fix ad hoc norms for 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 applicant to deposit an amount of ₹ 10 lakhs as pre-deposit within a period of 8 weeks and report compliance on 29-4-2013. On due compliance there shall be stay of recovery of the balance dues till disposal of the appeal. 10. Counsel for the respondent has relied upon the order passed by Joint Commissioner in the case of assessee in case no. 39/2011 wherein it has been observed as under:- The Assistant Commissioner
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rms of para-6 of aforesaid OIL the excess quantity cleared than quantity as per fixed norms was to be taken for demanding duty in the show cause notice. It is found that as per norms the assessee could clear a quantity of 325819.5 KG (Chart enclosed) whereas in actual they have cleared 318255.02 KG as mentioned in the show cause notice which limit of norms fixed for the assessee. I find that the jurisdictional Assistant Commissioner Central Excise Division Bhiwadi has verified the actual scrap cleared during the period involved in the SCN in terms of provisions of Foreign Trade Policy as well as the Notification No. 23/2003-CE dt. 31.03.2003 and found that as per norms the assessee could clear a quantity of 325819.5 KG whereas in actual they have cleared 318255.02 KG as mentioned in the show cause which is within limit of norms fixed for the assessee. In view of the above I hold that the quantity of scrap cleared by the assessee as mentioned in the show cause notice at concessional rat
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