By TIOL News Service

MUMBAI, AUG16, 2013: IN their WP filed before the Bombay High Court, the petitioner states that the coal imported by them from Indonesia is entitled to the benefit of two customs duty exemption Notifications viz. No.46/2011-Cus dated 1 June 2011 and No.12/2012-Cus dated 17 March 2012 as these notifications are not mutually exclusive. Inasmuch as there is nothing in either of the notifications mentioning that benefits under any other notification cannot be availed of.

The department is denying the benefit of simultaneous exemption under both the notifications and restricting the benefit to only one of them. The petitioner vide a communication dated 4 July 2013 has been informed that in the Chief Commissioner's Conference held at Vizag on 5 June 2013, it was decided not to extend simultaneous benefit of two notifications.

The High Court observed that in the CCs conference it was only resolved that the above issue be referred to the CBEC. Further, when the B/E was filed on 8 July 2013 for import of coal from Indonesia, the revenue informed the petitioner that the clearance of the imported coal would be allowed provisionally on payment of customs duty at 20% of Bank Guarantee for differential duty and bond for the balance differential duty.

The High Court further observed that in normal circumstances it would not have entertained a petition when the Dy. Commissioner of Customs is still to pass an adjudication order which is subject to statutory appellate procedure but in the present case, the adjudicating authority in his affidavit dated 26 July 2011 has already taken a stand that only the benefit of Notification No.46/2011 dated 1 June 2011 for coal imported from Indonesia is available. Furthermore, it has been held in the cases of Premier Mushroom Farms - (2005-TIOL-1091-CESTAT-BANG) and Super Cassettes Industries Ltd. - (2006-TIOL-135-SC-CUS) that in the absence of any bar in the notification itself it is open to an assessee to take benefit of more than one notification.

Noting that the issue of simultaneous availment of two notifications is still awaiting consideration at the hands of the Central Board of Excise and Customs to which even the petitioner has made a representation by letter dated 20 April 2013, the High Court held that the interests of justice would be served, if during pendency of the petition or till the decision of the Central Board of Excise and Customs, whichever is earlier, the respondent authority shall permit the petitioner to avail of benefits of both the exemption notifications(after complying with the conditions laid down therein) and subject to the condition that the petitioner will give a bank guarantee for 20% of the differential duty and bond for the balance amount as sought for by the respondent in the letter dated 8 July 2013.

(See 2013-TIOL-624-HC-MUM-CUS)