TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 489
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....aval Vyas for the respondent. 2.1 Rule, returnable forthwith. Learned advocate Mr. Khubchandani waives service of notice of Rule on behalf of the respondent. 2.2 Since the controversy is in narrow compass, with the consent of learned advocates appearing for the respective parties, the matter is taken up for final consideration. 3. For the sake of convenience, Special Civil Application No. 9914 of 2015 is treated as a lead matter. 4. Brief facts of the case are as under. 4.1 The Petitioner firm used aluminum waste and scrap as raw materials and after melting such raw materials, goods in plates and sheets of aluminum are produced. Such unwrought aluminum plates and sheets are processed further, and it is subjected to cutting and shearing processes for producing aluminum circles on which excise duty at appropriate leviable rates is paid. 4.2 The Central Government has issued a Notification No. 3/2005-CE dated 24th February, 2005 allowing exemption to various goods from levy of Central Excise duty wherein at Serial No. 68, aluminum waste and scrap used within the factory of production for the manufacture of unwrought aluminum plates and sheets are specified as exempt goods. This ....
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....ccepted by the Customs Department and become final and binding. 4.6 The Petitioners were informed about the said development and since the raw materials imported by the Petitioners were similar to those imported by M/s. Ry. Midas Metacast Pvt. Ltd. and the manufacturing process of both the manufacturers was also similar, the Petitioner firm also claimed exemption of Notification No. 12/2012 for a consignment of aluminum scrap imported vide Bill of Entry No. 972 dated 19th June, 2014, which was allowed by respondent No. 3 and the goods were allowed to be cleared from customs area without collecting CVD on the goods. Another Bill of Entry No. 983 dated 24th July, 2014 was also assessed finally by the respondent No. 3 and aluminum scraps imported thereunder was also allowed to be removed for home consumption without charging Additional Customs Duty. Various other Bills of Entry were also filed by the Petitioner firm from time-to-time, and they were assessed and exemption was allowed of the above Notification No. 12/2012 without charging and collecting Additional Customs Duty. 4.7 It appears that respondent No. 3 had doubt about the admissibility of the exemption Notification for the....
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....st March, 2015 allowing appeal of the Revenue holding that the exemption of Notification No. 12/2012-CE was not admissible. 5. Feeling aggrieved, the petitioners have approached this Court by way of present petitions. 6. Learned advocate Mr.Amal Dave for the petitioner submitted that the Commissioner (Appeals) could not have passed the impugned order as the order relied upon by the Commissioner (Appeals) in case of M/s. Ry. Midas Metacast Pvt. Ltd. stands quashed and set aside by the judgment rendered by this Court in Special Civil Application No. 6089 of 2015. It was, therefore, submitted that the petitioners are also entitled to the same benefit as it is not in dispute that facts in case of the petitioners and in case of M/s. Ry. Midas Metacast Pvt. Ltd. are similar and benefit of exemption of Notification No. 12/2012-CE is also required to be granted in case of the petitioners. It was, therefore, submitted that the case of the petitioners is now covered by the decision of this Court in Special Civil Application No. 6089 of 2015 in case of M/s. Ry. Midas Metacast Pvt. Ltd. (supra). 6.1 Learned advocate for the petitioner submitted that no new facts have come on record in the p....
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....factory. It was, therefore, submitted that the impugned order is liable to be quashed and set aside. 7. On the other hand, learned advocate for the respondent submitted that the petitions involve disputed question of facts which are not capable of being determined by this Court in exercise of jurisdiction under Article 226/227 of the Constitution of India. It was further submitted that the petitioners have alternative efficacious remedy of appeal prescribed under Section 129 A of the Customs Act, 1962 and therefore, the petitions should not be entertained. 7.1 Learned advocate for the respondents referred to and relied upon the following averments made in the fresh affidavit-in-reply filed on behalf of the respondents after the permission was granted by this Court vide order dated 24th October, 2018 after tendering apology with regard to the averments made in the earlier affidavit-in-reply affirmed on 08th July, 2015, which read as under. 8. 1 say and submit that the benefit of the notification No. 12/2012 is granted under the separate chapter heading which provides as follows:- Sr. No. Chapter of heading or sub-heading tariff item of the First Schedule Description of excis....
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....he petitioners provide to their customer is aluminum circles. 11. I say and submit that the notification no. 12/2012 dated 17.03.2012 provides for separate chapter headings for two entries which is as follows:- Sr. No. Chapter of heading or sub-heading tariff item of the First Schedule Description of excisable goods Rate Condition 1 2 3 4 5 220 7606 Aluminum Plates and Sheets (other than circles), intended for use in manufacture of utensils Nil 16 and 21 I say and submit that therefore, taking into consideration the chapter heading 7606 at Sr. No. 222 the same is also with respect to the aluminum plates. However, the circles are excluded from the grant of any exemption as the entry provides that the aluminum plates and sheets (other than circles), intended for use in manufacture of utensils. I say and submit that hence, the notification was only for the manufacture of aluminum plates and sheets and the circles were expressly excluded. I further say and submit that in the said notification there is another chapter heading for aluminum circles on which no exemption is to be granted and which provides as follows:- 223 7606 Aluminum circles Rs. 2500....
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....he basis of clarification received from TRU, and the instruction issued by directorate of systems and data management, SI. No. 220 of notification No. 12/2012-C.E. dated 17.03.2012 needs to be updated in the ICES. In view of the above points, discussion took place in the conference and it is concluded that no updating is required. Hence it is clear that the benefit of the notification is not available to the petitioner and order passed by the Commissioner (Appeal) is proper and legal. 15. It is submitted that Section 12 of the Customs Act, 1962 provided that except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at 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, on goods imported into, or exported from, India. Since the petitioner is not eligible for the benefit of the notification No. 12/2012-CX dated 17.03.2012, they are required to pay duty on importation of the goods. 16. I say and submit that the petitioners have placed reliance upon the judgment of the Hon'ble Division Bench in case of M/s. R.Y. Midas Metacast P. Ltd., ....
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....Chartered Engineer's certificate dated 17.10.2010 and photographs showing the manufacturing process of aluminum plates/sheet and utensils, to prove that impugn goods were first converted into unwrought aluminum plate and sheet and subsequently the same are used fort manufacture of aluminum circle to be used for manufacture of utensils...." 4.3 Therefore, after recording the finding that petitioner is manufacturing aluminum sheets and from circles, he is manufacturing aluminum utensils, he granted exemptions to the petitioner under Notification No. 3/2005 which is now renumbered as Notification No. 12/2012 - Central Excise dated 17.3.2012. This order of Commissioner of Customs (Appeals) dated 2.9.2011 attained finality between the parties and they did not challenge this order by way of any further appeal. 4.4 Another notice was issued for subsequent goods after bills of entry were filed by the petitioners, for which exemption was not granted by the Assessing Authority. However, the Commissioners of Customs (Appeals) allowed the appeals of the petitioner. The judgment of the Commissioner of Customs (Appeals) are filed at Annexure-E, Annexure-G and Annexure-H. Subsequently, two ....
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....stoms (Appeals), Ahmedabad in its earlier judgment dated 2.9.2011. Therefore, the order passed by the Commissioner of Customs (Appeals), Ahmedabad cannot be maintained. 6. Mr. R.J. Oza, learned Senior Counsel has vehemently urged that petitioner has an adequate statutory remedy of filing an appeal. It is true that petitioner has statutory remedy of filing an appeal challenging the order passed by Commissioner of Customs (Appeals), Ahmedabad under Section 129 of the Customs Act. The facts of the case demonstrate a clear abuse of power by Commissioner of Customs (Appeals), Ahmedabad and when there were repeated orders granting exemptions to the petitioner and even the objection with regard to circle having been considered earlier, it was not open to the Commissioner of Customs (Appeals), Ahmedabad to reverse the orders of the Assessing Authority only on the basis that the petitioner was manufacturing circles also. The order of the Commissioner of Customs (Appeals), Ahmedabad was contrary to the judicial propriety, discipline and amounted to abuse of process of the Court and it could be said to be an order passed without jurisdiction. Therefore, alternative remedy is not come in....