By TIOL News Service

MUMBAI, FEB 20, 2013: WHILE every other day, the Revenue is blamed for clogging the Tribunals by filing frivolous appeals and applications, the present case is an indicator that assessees too are partly responsible for the same.

The short facts of the case are - The  applicants cleared two electric transformers without payment of duty to  M/s International Homex Limited  in the month of December, 2005 stating the intended clearance as being for Export. Show-cause notice was issued to the applicants demanding duty along with interest and for imposing penalty on the ground that no specific Notification has been produced for clearing the goods to units working under EPCG scheme.

The adjudicating authority dropped the duty demand of Rs.3,03,552/-. However, the Commissioner(A) set aside the adjudication order on appeal filed by the Revenue.

Against this Order-in-Appeal no. PKS/447/BEL/2010 dated 26.11.2010 passed by the Commissioner of Central Excise (A), Navi Mumbai, the assessee filed an appeal before the CESTAT in the year 2011.

When the matter came up before the Single Member Bench on 27.08.2012, the CESTAT had observed thus -

"1. The issue involved in this matter is that determination of rate of duty as it relates to clearance of excisable goods without payment of duty under EPCG license. Therefore, the matter has to be decided by a Division Bench of this Tribunal as per the provisions of Section 35D (3) of the Central Excise Act, 1944. Accordingly, I direct the registry to place the matter before the Division Bench of this Tribunal for consideration and disposal of this appeal."

We reported this as 2012-TIOL-1622-CESTAT-MUM.

So, the matter came to be heard by a Division Bench on 10.10.2012.

During the course of proceedings, a specific question was put to the applicant to indicate the notification under which the goods were cleared without payment of duty.

Interestingly, the applicant submitted that there is no specific Notification granting exemption to the goods cleared to the unit working under EPCG Scheme but they adverted to the Foreign Trade Policy.

The Bench, therefore, observed -

"4. As the applicants failed to produce any Notification even at this stage granting exemption to the good cleared to the unit availing EPCG benefit, the applicants had not made out a case for waiver of duty. Therefore, the applicants are directed to deposit the entire duty amount within a period of six weeks. On deposit of the duty amount, pre-deposit of interest and penalty is waived and recovery thereof is stayed during the pendency of the appeal."

We reported this as 2012-TIOL-1714-CESTAT-MUM.

The appellant is once again before the CESTAT, now with a Modification application. This application was heard by the Division Bench on 11.12.2012 and the Bench observed thus -

"The applicants filed this application for modification of the stay order dated 10/10/2012. The Tribunal vide stay order dated 10/10/2012 directed the applicants to deposit the amount of duty only. The applicants are engaged in the manufacture of electric transformers and the same were cleared without payment of duty. Before the lower authority the applicants failed to show any Notification under which the goods were exempted. Even during the argument on the stay application, a specific question was put to the ld. Counsel that under which Notification the goods were cleared without payment of duty. The Ld. Counsel submitted that there is no Notification granting exemption. In these circumstances, the applicants were directed to deposit the amount of duty only. As the applicants cleared the goods without payment of duty and had not produced any Notification under which the goods were exempted from payment of duty, therefore, we find no merit to modify our stay order. Modification application is dismissed. However, in the interest of justice, two weeks' time is granted to deposit the amount.

2. Compliance is to be reported on 31/12/2012."

Hope the appeal gets disposed of in the New Year...at least!

(See 2013-TIOL-329-CESTAT-MUM)