Whether an assessee is liable to pay interest on the duty to be paid on non fulfilment of conditions of notification.

PJ/Case Laws/2012-13/1175

CASE: - COMMISSIONER OF CUSTOMS, BANGLORE-I V/S WIPRO LTD. (INFO TECH GROUP)
CITATION:- 2012 (280) E.L.T 174 (KAR.)
ISSUE: - Whether an assessee is liable to pay interest on the duty to be paid on non fulfilment of conditions of notification.
BRIEF FACTS: - This appeal is filed by the revenue against the order passed by the CESTAT under Section 129B(2) of the Customs Act, 1962, rectifying the mistake of levying of interest. The assessee imported various components during the year 1994-95. The assessee claimed exemption from payment of duty under Notification No. 96/93-Cus., dated 2-3-1993. The assessee did not produce any documentary evidence showing that they have used the aforesaid components in manufacturing of certain items and the same have been exported. Therefore, proceedings were initiated against the assessee claiming duty foregone. After hearing the assessee, the demand was confirmed by the Deputy Commissioner. Appeal preferred against the said order before the commissioner (appeals) came to be dismissed. The appeal to the tribunal also met with the same fate. It is there after an application is filed under section 129B(2) of the act for rectification. Of the mistake apparent from the record in the respect to the final order dated 31-7-2007. The mistake that was pointed out was that the notification no. 96/93 did not enable the revenue for the payment of any interest in terms of the duty foregone in notification no. 96/93. Therefore, the levy of interest as confirmed by the tribunal is an error which is apparent on the face of the record and needs to be rectified. Accepting of the case of the assessee, the tribunal passed the impugned order deleting the interest portion.
The appeal was admitted to consider the following substantial questions of law:
1) Whether the order of the Hon’ble CESTAT is legally sustainable in respect of an amendment made in Misc. order beyond the period of sex months?
2) Whether the order of CESTAT is legally sustainable in view of erroneous finding and misinterpretation of law?
APPELLANTS CONTENTION:- The learned Counsel for the revenue assailing the impugned order commanded that the Tribunal has virtually reappreciated the entire material on record and has passed the order contrary to the original order which is not permissible while exercising the power under Section 129B(2) of the Act. Therefore, the impugned order requires to be set aside.
REASONING OF JUDGEMENT:-Insofar as the first substantial question of law is concerned, the said question of law is answered by the Apex Court in the case of Sunitadevi Singhania Hospital Trust v. Union of India reported in 2009 (233) E.L.T. 295 (S.C.) as well as the Full Bench judgment in the case of JK Tyre and Industries Ltd. v. Assistant Commissioner of Central Excise, Mysore-II reported in 2011 (266) E.L.T. 163 (Kar.), where it has been held that the limitation of six months prescribed is applicable only if the Tribunal exercise suomotu power. The said period of limitation for disposal of proceedings for rectification is not applicable to application filed by the aggrieved party. In that view of the matter, the said substantial question of law is answered in favour of the assessee and against the revenue.
Insofar as the second substantial question of law is concerned, in the original order the Tribunal has categorically held that the assessee imported the components claiming benefit of exemption notification. Once the notification benefit is claimed, it is obligatory on the part of the assessee to fulfil the conditions of the exemption notification. When they produce the shipping bills as a proof to show that the imported components have been utilized in the manufacture of the goods which have been exported, there should be proper correlation. The vague statement that all the goods have been utilized for export or research purposes is not sufficient. It is obligatory on the part of the assessee to satisfy the Deputy Commissioner as to how these various components were issued for the manufacture of goods which were exported and also for R & D purposes. When the assessee is availing huge amount of duty exemption they cannot forego it very carelessly in their project. Therefore, the Tribunal held that the assessee has not taken serious efforts to comply with the custom procedure. The tribunal did not find fault with the lower authorities for the confirmation of the duty and interest. Therefore, it is clear that the tribunal took note of the fact that the assessee imported various components claiming exemption under notification no. 96/93, but did not discharge the export obligation to the satisfaction of the authorities. Therefore the assessee is liable to pay duty foregone.
DECISION: - THE APPEAL WAS DISMISED.
Comment:- there are two important decision coming out of this order. Firstly, the amendment can be made by tribunal after the period of six months if the aggrieved party files the appeal. But it cannot be done by CESTAT at its own. Since, the misc application was filed by party. Hence the order passed by tribunal is proper.
The second issue is answered is against the assessee that when the duty is confirmed then interest is payable. However, we have come across a latest decision recently, wherein it was held that when duty is not payable but it has been paid by the assessee then interest is not payable at all.

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PJ/Case Laws/2012-13/1175

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