Benefit under Notification No. 26/2000-Cus on Import of polished Marbles slabs

PJ/Case Laws/2011-12/1326

Case: ORIENTAL TILES LTD v/s COMMISSIONER OF CUSTOMS (PORT), KOLKATA

Citation: 2011 (270) E.L.T. 664 (Tri. - Kolkata)

Issue:- Denial of benefit Under Notification No. 26/2000-Cus on import of polished Marble slabs.

Brief Facts:- Appellant made import of marble slabs declaring the same as polished marble slabs from Sri Lanka from their subsidiary company and claimed the benefit of Notification No. 26/2000 read with Notification No. 19/2000-Cus. The goods were provisionally released as the import was made from subsidiary company and the issue of valuation was finalized. Subsequently customs officers visited the premises of the Appellant and on visual examination found that the marble slabs which were imported under 21 bills of entries were not completely polished. Thereafter, Show Cause Notice was issued and impugned order was passed denying the benefit of exemption Notification and confiscated the goods and imposed penalties. The goods were reclassified the goods under chapter heading 25151220 of Customs Tariff as rough marbles.

Appeal is in appeal before the Tribunal.

Appellant’s Contention:- Appellant contended that the rough marble slabs were imported from

Omanto Sri Lank by declaring the value at US Dollar 11.39 per square metre where the same had undergone the process of polishing. Thereafter these marble slabs were imported into India by declaring the price between US Dollar 16 to18 per square meter. It is also submitted that the CVD (countervailing Duty) as applicable was also paid at the time of import. Revenue is denying the benefit of Notification only on the ground that the final process of manufacture is not performed within the territory of exporting country. The Applicant has sufficient machinery/equipment at their unit in Sri Lanka to convert the marble slabs to polished marble slabs and after import the polished marble slabs were sold in the market. There is no factory or equipment in India where the imported slabs further worked upon. The buyers of the marble slabs at the time of fixing may have taken some finishing touches to remove the dust etc. The contention is also that the Revenue is not relying upon any expert opinion or trade opinion whether the stabs in question were polished or not. It is also submitted that the dispute in respect of payment of CVD duly in respect of polished marble slabs imported by the applicant was settled by the Calcutta High Court vide Order dated 18-5-2006 held that polished marble which has been imported by the Appellant into India cannot be termed as manufacture of that goods in India.

Respondent’s Contention:- Revenue contended that the premises of the Appellant was visited and it was found some slabs were lying which were not termed as polished marble slabs. The statement of the employee also shows that the slabs require polishing for use. The Revenue relied upon the conditions of the Notification No. 19/2000-Cus. (N.T.) whereby it has been provided that the final processes of manufacture is to be performed within the territory of exporting country as the final process i.e. polishing has not been completely performed at the importing country i.e. Sri Lanka hence the benefit was rightly denied.

Reasoning of Judgment:- The Tribunal noted that Revenue is denying benefit of Notification on the ground that as the marble slabs were not completely polished at the country therefore benefit is not available to the appellant. The Director of the importing firm in his statement gave the details of the equipment/machinery available at their factory in Sri Lanka and also the processes undertaken including polishing on the rough marble imported into Sri Lanka. The Revenue is only relying on the statement of employee where he simply stated that some polishing is required for use.

The Tribunal held that allegation in the Show Cause Notice is not that the goods found at the premises are rough marble, allegation is that the marble is not completely polished. There is no evidence to show that Appellant had undertaken any process which can be termed as polishing after import. The goods were sold after import and the customers may have undertaken finishing touches after fixing the marble. The issue whether the marble slabs imported by the Appellants are liable to pay CVD (Countervailing duty) and finally decided by the Calcutta High Court vide order dated 18-5-2006 and the High Court treated the goods as polished marble which has been imported by the Appellant into India and held that the activity undertaken by the Appellant does not amount to manufacture of goods in India.

There is no technical or trade opinion obtained by the Revenue regarding the conditions of the slabs found at the premises of the Appellant and visual examination is only to the extent that the same is not completely polished.

Decision:- Appeal allowed.

Comment:- The allegation by the department has to be supported by expert opinion and not based on employee of the company. Everyone knows that the department uses pressure for obtaining such statements. This verdict is very important for consultants.

Comments

PJ/Case Laws/2011-12/1326

Post a Comment

Query