TaxTMI 
TaxTMI 
2014 (12) TMI 532
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....he said DFIA, the appellant were allowed to import of goods of the quantity and value mentioned therein without payment of duties of customs including Anti Dumping Duty within the validity period of 36 months. The Notification 98/2009 dated 11.09.2009 exempts the material imported in India against the DFIA issued endorsement of para 4.2.1 and 4.2.2 of the Foreign Trade Policy from the whole of the duty of Customs leviable thereon which is specified in First Schedule of Customs Tariff Act, 1975 and whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon respectively under Section 3, 8B and 9A of the CTA subject to the conditions mentioned therein. Therefore vide Notification 2 (RE-2013) dated 18.04.2013, various provisions of the FTP were amended including exemption from payment of Anti Dumping Duty under DFIA. As per the said Notification Anti Dumping Duty and Safeguard duty would be leviable on goods imported against transferred DFIA. Consequently, the Customs Notification 98/2009 was amended through Notification 24/2013 dated 18.04.2013 to give the effect of said Notification, the appellant were denied the exemption from payment of Anti Dumping Duty on....
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....on affecting the Import/Export of the goods which may be in force at the time of their arrival/despatch." Therefore, the provisions of FTP are to be read with conjunction with the provisions contained in the Customs Act, 1962. The specific exemption from Customs duties is available not solely because the provisions contained in FTP but also for the fact that an enabling Notification under Section 25 has been issued to permit such exemption. The exemption, if any can be claimed only at the time of actual import and that too only if a valid Notification is in force at the time of import. Thus, date of import or the date of filing of bill of entry is an important factor in deciding the applicability of any particular Notification. In this case, the appellant has presented the bill of entry on 09.05.2013 and as on the date of bill of entry was filed, the amended Notification was force. Therefore, the Adjudicating Authority has rightly demanded the Anti Dumping Duty and safeguard duty. 6. He further relied on Kasinka Trading vs. UOI 1994 (74) ELT 782 (SC) wherein the Hon'ble Apex Court held that an exemption Notification only suspends collection of duty, wholly or partially. It do....
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....ent of transferability issue of DIFA. Subsequently goods were cleared by Ex-bond Bills of entry dated 30.10.07 and 31.10.07 under the claim of benefit of notification NO. 40/06-Cus which grants exemption to the imports made under DIFA, from the basic customs duty as also from Countervailing duty. 2. After the clearances of the goods, further investigations were made and records were scrutinized which transpired that the foreign trade policy underwent some changes in the year April, 2007 and April, 2008. According to the transferability para 4.4.6 of the foreign trade policy, the imports made against DIFA were required to discharge duty liability in respect of additional customs duty. Inasmuch as the imports were made after the change in the foreign trade policy, though the DIFA were issued prior to said change, Revenue entertained a view that said imports attracted additional Customs duty/ countervailing duty." In that case, this Tribunal has observed as under: "5. We have seen the changes made in the foreign policy. Admittedly, prior to April, 2007, there was no requirement of payments o....
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....xcise duty shall continue to be available even after endorsement of transferability, as provided in FTP (RE-2006)." 7. As such, the doubt if any, stands clarified in the subsequent policy wherein it was specifically held that authorization issued prior to 1.4.2007, shall continue to avail the benefit of exemption from additional customs duty / excise duty. Apart from the above, we also note that subsequently a circular was issued by the Board, being Circular No. 11/09-Cus dated 25.2.2009. Para 9(d) of the Circular read as under:- "(d) as regards the authorizations issued prior to 1.4.2007, the DOC in para 4.4.6 of the FTP (2008) has provided that, exemption from payment of additional duty of customs /excise duty shall continue to be available, even after endorsement of transferability. In view of this, no action need be taken to recover revenue in such cases." Admittedly the above circular was issued subsequent to passing of present impugned order by Commissioner and as such the adjudicating authority did not have the benefit of examining the same. It is well settled law that the circulars issued by....
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....nbsp; (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government." 14. It would be seen from the above Section that the goods on importation are to be charged to duty on such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975)], or any other law for the time being in force. Further, Section 15 of the Customs Act, 1962 deals with Date of determination of rate of duty and tariff valuation of imported goods. The said Section is reproduced below:- "Section 15. Date for determination of rate of duty and tariff valuation of imported goods . - (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, - (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which a bill of entry for home consumption i....
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....i-dumping duty shall not be available in case materials are imported against an authorisation made transferable by the Regional Authority. 2A. In case the imported materials are transferred with the permission of Regional Authority, the importer shall pay an amount equal to the safeguard duty and anti-dumping duty leviable on the material so imported and transferred, but for the exemption contained in paragraph 1 above, together with interest at the rate of fifteen per cent. per annum from the date of clearance on import of the said materials." 16. The opening para, the said exemption exempts materials imported into India against a Duty Free Import Authorisation issued in terms of paragraph 4.2.1 and 4.2.2 of the Foreign Trade Policy from the whole of the duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon, respectively, under section 3, 8B and 9A of the said Customs Tariff Act, except to the extent specified in paragraph 2 of this notification. Para 2 of the said Notification states that the exempti....
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....ermission of Regional Authority, the importer shall pay an amount equal to the safeguard duty and anti-dumping duty leviable on the material so imported and transferred but for the exemption contained in paragraph 1 above, together with interest at the rate of fifteen per cent. per annum from the date of clearance on import of the said materials. 2AC. With effect from 17th September 2013, in case the imported materials are transferred with the permission of Regional Authority, and where such permission is granted on or after the 18 th April, 2013, the importer shall pay an amount equal to the safeguard duty and anti-dumping duty leviable on the material so imported and transferred, but for the exemption contained in paragraph 1, but for the exempting contained in paragraph 1 above, together with interest at the rate of fifteen per cent per annum from the date of clearance on import of the said materials." 19. The said amendment is carried on 17 th September 2013. The amended Notification would be applicable only where the relevant date for determination of duty is 17 th September 2013 or thereafter. In the present case, the relevant date is 09.05.2013 and hence....
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....; c) Whether Member (Technical) is right in holding that the appellants are not entitled for benefit of exemption Notification No. 98/09 dated 11.09.2009 as amended by Notification No. 24/2013 dated 18.04.2013, and the amendment made vide Notification No. 45/2013 dated 17.09.2013 have no relevance to the facts of this case and the case law relied upon by the ld. counsel in the case of Namco Steels P. Ltd. have no relevance to the facts of this case as there was no amendment in the Customs Notification, amendments were only in FTP. (Pronounced in Court on 15.07.2014) ORDER ON DIFFERENCE OF OPINION Per: P R Chandrasekharan: 23. The difference of opinion referred to me for consideration reads as follows: a) Whether Member (judicial) is right in holding that as per the clarification by Notification No. 45/2013 dated 17.09.2013, the appellant is entitled for exemption under Notification No. 98/09 dated 11.09.2009; b) Whether Member (Judicial) is right in relying on the decision of Namco Steels P. Ltd. 2013 (296) ELT 68 to arrive at a decision that appellant are entitled for benefit of exemption Notification No. 98/09 dated 11.09.20....
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.... the terms and conditions of any import will be governed by the Foreign Trade Policy provisions as existing on the date when a licence is issued and reliance is placed on the decision of the hon'ble apex Court in the case of Jain Exports (P) Ltd. 1992 (61) ELT 173 and Bharat Barrel and Drum Manufacturing Co. 1999 (110) ELT 396. He also submits that this Tribunal in the case of Namco Steels Pvt. Ltd. relying on the CBEC circular dated 11/2009-Cus dated 25/02/2009 has held that imports under a licence issued prior to imposition of non-transferability or actual user condition will enjoy exemption from additional customs duty. He also submits that in the amending Notification dated 18/04/2013, the expression used is that exemption from safeguard duty and anti dumping duty shall not be available in case materials are imported against an authorisation "made transferable" by regional authority. The action of "making transferable" is the crucial event and if such event has occurred prior to 18/04/2013 and, therefore, restriction placed on transferability will not apply. It is his further contention that this position was clarified vide Notification 45/2003-Cus dated 17/09/2013 wherein ....
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....pect of such goods is presented under that Section. Therefore, in the present case, the rate of duty that would apply is the rate prevalent on 09/05/2013 when the Bill of Entry for home consumption was filed. On that date when the bill of entry was filed, Notification 98/2009 clearly stated that the exemption from safeguard duty and anti dumping duty shall not be available in case materials are imported against an authorisation made transferable by the regional authority. The said Notification does not stipulate on what date the authorisation should have been made transferable. In the absence of any specific mentioning of the date as to when the transferability should have been made, there is no merit in the contention of the appellant that the Notification stipulates 18/04/2013 as the date on which the authorisation should have been transferable. It is a settled position in law that a Notification should be construed strictly, being in the nature of exception. It is also equally settled that while interpreting a Notification, no words should be read into a Notification or no words should be excluded from a Notification. The Notification should be interpreted as it is worded. The h....
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.... also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious." 27.3 If we apply the ratio of this apex Court decision to the facts of the present case, Notification 45/2013 dated 17/09/2013 can be given effect to only with effect from 17/09/2013 as clearly stipulated therein. Therefore, the argument that the Notification should be given effect to retrospectively does not stand to any logic or reason. 27.4 As regards the contention that there will be inequity if Notification 45/2013-Cus (NT) is not treated as clarificatory, this argument is not acceptable. It is a settled position in law as held by the hon'ble apex Court in Sales Tax Commissioner vs. Modi Sugar Mills [AIR 1961 SC 1047 P. 1051] - "In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions'. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly ex....