2005 (5) TMI 442

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.... 4-11-2003 amending Notification No. 21/2002-Cus., dated 1-3-2002 is not clarificatory as it was not issued within one year of the parent notification. While arriving at the conclusion, she has relied on sub-section (2A) of Section 25 of the Customs Act, 1962.  3.The facts in brief as follows : - "The appellants had imported goods described as "component of bipolar electrolisers and cell elements based on ion-exchange membrane cell technology" and cleared the same on payment of duty under protest. Later, they filed a refund claim for an amount of Rs. 1,69,80,271/- claiming benefit of Customs Notification No. 21/2002 elated 1-3-2002 (Sl. No. 285). The above notification provides exemption for the goods for modernization of an exis....

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....peared for the Revenue. 4.The learned Advocate for the appellants relying on a plethora of case laws strenuously argued that in the circumstances of the case, the amending notification should be given retrospective effect. He relied on the following case laws: - (1)     WPIL Ltd. v. CCE [2005 (181) E.L.T. 359 (S.C.)] (2)     Johnson and Johnson Ltd. v. CCE [1997 (92) E.L.T. 23 (S.C.)] (3)     CC v. Bharat Heavy Electricals Ltd. [1996 (82) E.L.T. A40 (S.C.)] (4)     CC v. Bharat Heavy Electricals Ltd. [1984 (17) E.L.T. 525 (T)] (5)     CCE v. North Eastern Tobacco Co. Ltd. [2002 (146) E.L.T. 490 (S.C.)] (6)  &nbs....

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....odernization by using membrane cell technology, of an existing caustic soda unit; 15% - 62     (2) Membranes for replacement of worn out membranes in an industrial plant based on membrane technology.       A reading of the above entry indicates that the notification will not be applicable if the goods are required for a new unit. In the instant case, even though originally the goods were meant for the existing caustic soda unit Kovvur, they could not use as they had closed the unit due to the Orders of Andhra Pradesh Pollution Control Board. The amending Notification No. 161/2003-Cus. reads as follows :- "In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs A....