TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 325
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....ing to CaO content under the Advance License provisions and consequently to the Exemption Notification? ii. Whether, in the facts and circumstances of the case, the Hon'ble CESTAT, Kolkata is correct in holding that the eligibility to the exemption from Custom Duty is still admissible without fulfilling the condition stipulated in the Advance License/Exemption Notification?" Fact of the Case 2. M/s. Tata Iron & Steel Company Limited, Paradeep (Respondent in the present appeal) imported Low Silica Limestone (LSL) in bulk and being covered by Value-based Duty Exemption Entitlement Certificate (in short, "DEEC") issued by the Licensing Authority in the form specified in the Schedule annexed to Notification No.79/95- Cus, dated 31st March, 1995 (as amended) in respect of the value, description, quality and technical characteristics availed the benefit of exemption from payment of duty of customs as the said product was certified by M/s. SK Mitra, Kolkata contained Calcium Oxide (CaO) content of more than 53%. The said company submitted the Bills of Entry for clearance. On scrutiny, the Department alleged to have found less than 53% CaO, which in view of the Department, is not eligi....
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....to grant the Customs duty exemption. I have discussed relevant facts to show that TISCO have fulfilled the other conditions of the License, D.E.E.C. Scheme and the exemption notification No.79/95-Cus dated 31st March, 1995 as amended and hence was eligible for the exemption. *** Sample Issue revisited: 7.0. *** iv) The Samples were taken by M/s. S.K. Mitra exactly at the time of loading/unloading which was not the case for samples drawn by Paradeep Customs ( of IS:2109-1982). Difference of time/place could bring some divergence in CaO% contents. v) Less than 53% CaO would have been unprofitable to TISCO themselves, for it would have meant higher cost; implying that had it been so they would have taken up the matter with the suppliers. In support of this contention, they drew attention to the certificate issued by the National Metallurgical Laboratory, Council of Scientific and Industrial Research, Govt. of India Jamshedpur. vi) Regarding reliability of the tests done by M/s. S.K. Mitra, they contended that this was an independent and Government recognized inspection agency. They referred to the recognition given to the said firm by the Ministry of Commerce, and also the....
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....DEEC Scheme and exemption notification. The Department is not questioning the findings of the compliance relating to other conditions, as held by the Commissioner. The Department submits that the condition relating to CaO content has not been fulfilled by the Respondents and therefore, they are not eligible for the benefit of the Notification No.79/95-CE dated 31st March, 1995 and therefore, the Orders of the Commissioner are not legal and proper. Any discussion or ruling on this issue, in our considered opinion, will amount to reviewing the Order of the Tribunal dated 26th June, 2002. As we do not have powers of review, the prayer of the Department cannot be accepted. The Commissioner's finding regarding the compliance with the other conditions, as directed by the Tribunal vide Order dated 26th June, 2002, is not in dispute. As we cannot review the earlier decision of the Tribunal relating to availability of exemption in spite of not fulfilling the condition relating to CaO content, we do not find any reason to interfere with the impugned Orders of the Commissioner." Arguments of the counsel for the Appellant 3. Mr. Choudhary Satyajit Misra, learned Senior Standing Counsel appea....
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....ld to have observed all the other conditions of the license, DEEC Scheme and exemption notification, they should be entitled to the exemption." 4.2. On perusal of record, it is seen that the Commissioner in his de novo Order dated 31.03.2005 has come to the conclusion that there was no other violations and has placed reliance on the test done by M/s. S.K. Mitra, which is an independent and Government recognized inspection agency. It has been stated that the Department having not questioned the findings of the Commissioner with regard to "other conditions" there was no scope for it to examine the issue of percentage of CaO in Low Silica Limestone. 4.3. Whereas, the Department has accepted the Order dated 26th June, 2002 of the learned CESTAT, by virtue of which the matters were remanded for passing de novo order by the Commissioner, it is, thus, held that neither the Original Authority nor the CESTAT could travel beyond what was observed and directed in the Order dated 26th June, 2002. Therefore, the learned CESTAT is correct in its approach by holding that it cannot entrench upon the sample issue particularly when there is no dispute with regard to "other conditions" stipulated i....