TaxTMI 
TaxTMI 
2020 (11) TMI 541
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmissions made before this Hon'ble Tribunal at the time of hearing have not at all been considered while passing the impugned order dated 24.10.2019. a. It was submitted that the department had proceeded on an erroneous assumption that there is short/nonpayment of duty on import of capital goods when there was merely a shifting of exemption scheme from EOU to EPCG i.e. earlier the Applicant availed exemption under Notification 52/2003-Cus dated 31.03.2003 and subsequently in view of the order of the BOA and the EPCG committee the Applicant was allowed exemption under Notification No. 97/2004-Cus dated 17.09.2004. b. It was also submitted that two Government agencies had implemented different policy provisions and had difference of opinion with respect to the approval granted by the BOA. In fact, both the orders of the BOA and EPCG Committee acknowledged that the Appellant was nowhere at fault and accordingly proposed a waiver should be granted in terms of payment of interest. In the BOA, one of the representatives from the Ministry of Finance had participated in the discussion and the decision taken thereon. c. Without prejudice to the submission that no interest is payabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rdingly the proceedings for recovery of demand of customs duty are pre mature. It is respectfully submitted that no finding on the said submissions has been given in the impugned order and only the findings in the order-in-original given by the Respondent have been re-produced at Para 4.2 of the impugned order. b. It is submitted that, the plea raised by the Applicant that no interest is payable by the Applicant under Section 28AA (w.e.f 08.04.2011)/Section 28AB has been summarily rejected by this Hon'ble Tribunal in the impugned order as under: "4.4 The contentions raised by the Appellant in respect of the demand made under Section 28 and interest under Section 28AA have been considered by the Hon'ble Bombay Court in case of Valecha Engineering Ltd. [2010 (249) ELT 167 (Bom)] and following has been held: Thus, only reliance is placed on the decision in the case of Valecha Engineering Ltd. (supra) by reproducing the paragraphs from the said judgment without discussing as to how the ratio of the said decision is applicable to the facts of the present case. It is submitted that the said decision in any event was not relied upon by the departmental representative and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes; they do not interpret judgments, 6. Since the factual position has not been analysed in detail, disposal of appeals by mere reference to decisions, was not the proper way to deal with the appeals. The CEGAT also does not appear to have dealt with the relevance and applicability of ITC's case (supra) on which strong reliance has been placed by learned Solicitor General. The CEGAT ought to have examined the cases individually and the articles involved." 9. Considering the above, it is respectfully submitted that this Hon'ble Tribunal, in view of the above settled law ought to have given findings on the submissions made by the Applicant as to how in the facts and circumstances of the present case the ratio of the decision in the case of Valecha Engineering Ltd. (supra) is applic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der needs to be reconsidered, as the error is apparent in the said para; * Tribunal has held that the demand of duty and consequently the demand for interest made against them is sustainable in view of the decision of the Bombay High Court in the case of Valecha Engineering Limited [2010 (249) ELT 167 (Bom)], while doing so in para 4.7, tribunal should have determined the quantum of duty short paid and should have limited the demand of interest on the amount of duty short paid. * In the present case Commissioner has adjusted major portion of the demand by debiting the EPCG License which was available with them even at the time of importation. Since the major amount has been adjusted by debiting the EPCG License which was available with them mat the time of importation, the amount so debited cannot be considered as the duty short paid. Thus the duty short paid by them by availing the benefit of EOU Scheme, which was subsequently found in admissible to them, would be the duty actual payable against the imported goods minus the amount debited from the EPCG Licenses. Therefore the demand of interest should be limited on the amount duty short paid after debiting the EPCG License. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....OU Scheme, which are presently under bond, be treated as imports made under EPCG authorizations issued to them in 2005. They are also allowed to clear additional spares to the extent of the authorization value. b. All the 5 EPCG Authorizations shall be deemed to be valid. c. RA Mumbai will issue fresh EPCG authorizations for additional goods cleared under the EOU Scheme, and presently under bond, but not covered by the EPCG authorizations issued in the year 2005 for goods already arrived and cleared; d. The foreign exchange earned by rendering port services may be counted towards the export obligation to be fixed once the imports made by the 100% EOU are treated as imports made under EPCG Schemes and subsequently the case may be examined for issue of the EODC e. The concessional rate of customs duty prevalent on the date of import may be charged without interest (as a special case) by treating the imports as imports made under EPCG Scheme. This has the approval of DG." * Since the tribunal has in the impugned order confirmed the demand of interest on the entire amount of duty that was payable on the imported goods without allowing the benefit of the amount debited ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ded cannot be an error apparent on record, which can be rectified in terms of Section 129 B (2) of Customs Act, 1962. 7.3 Appellants in their application stated that while passing the order, tribunal has referred to certain decisions without establishing the relevance of those decisions. They referred to para 4.4, and have stated that tribunal has relied upon the decision of Hon'ble Bombay High Court in case of Valecha Engineering Ltd, without stating how the same is applicable in their case, and also they were not given the opportunity to argue against the same. On the contrary we find that in para 3.3 at third bullet while recording the submissions of the learned authorized representative, following have been recorded. "Further the case law relied upon by the appellants are in respect of warehousing interest and not in respect of the duty demanded and confirmed under Section 28, for the duty short paid or not paid on the due date, these decisions will not apply to the facts of the present case and are distinguishable. In a series of the decisions including the decision of Bombay High Court in case of Valecha Engineers Ltd., it has been held that demand of interest under Sectio....