2018 (1) TMI 173

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....king coal and Jellinbah PCI coal" in March 2011 and claimed exemption in terms of Notification No.21/2002 dated 01.03.2002. The Bills of Entry was provisionally assessed due to the dispute of term what is "coking coal" the said assessment of the Bills of Entry being provisional urgent requirement of the coal in the factory premises, respondent paid the duty under protest and consequently filed refund claim dated 28.11.2011 arguing that the imported goods are covered in Notification No.21/2011 dated 01.03.2011 and Notification No.77/2011 dated 17.08.2011. The Adjudicating Authority did not agree with the contentions raised by the importer M/S JSW Steels Ltd, and rejected the refund claim filed by them holding that the exemption is not availa....

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....nally assessed on the ground of seeking a clarification as to what is "coking coal". It is undisputed that the goods which were Imported by the respondents were coking coal kind of a coal which were used they them in corex technology which does not require the conversation of coal into coke; that specifications provided under Notification No.77/2011 and the corrigendum there to are complied by the goods imported We find that the First Appellate Authority while tracing the history of grant of exemption to coking coal has recorded the following: "8. Now coming to the main issue, I produce the contents of the relevant notifications namely 21/2002, 21/2011 and 77/2011-Custonqs for better appreciation of facts. Notification No.21/200....

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....ash content below 5% - - 69 27.01 Coking coal of ash content 12% or more 15% - - hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.21/2002-Cutoms, dated the 1^st March, 2002, published in the Gazette of India, Extraordinary vide number G.S.R. 118 (E), dated the 1^st March, 2002, namely. In the said notification. i)....................... to viii)....................... xi) against S.No.68, for the entry in column (3), the following entry shall be substituted, namely. "coking coal Explanation: For the purposes of this exemption, "Coking coal" means coal having mean refl....

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....lying an obvious omission, the subsequent statute relates back to the time when the prior statute was passed. Therefore, by way of substitution, the Notification No.21/2011 dated and 77/2011 dated 17.08.2011 were having retrospective applications. This also finds force from Supreme Court decision, in the matter of M/s WPI Ltd. Vs. CCE, Meerut reported in [2005 (181) ELT 359 (SC)] as circumstances were identical. In the case of Collector Vs. Woocraft Products Ltd., reported in [1995 (77) ELT 23 (S.C.)], apex court reiterated the scone. Further in the matter of M/s Vandana Global reported in 2010 (253) ELT 440-T-2B although issue is relating to CENVAT, it does indicate that any amendment by substitution will have retrospective effect. In the ....