TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 381
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.... Safeguard Duty. Such a stand was taken since the goods in question had been imported from "Taiwan", which is not listed as a developing country in the Notification No. 19/2016-Customs (N.T.) dated 05.02.2016. 2.1. The appellant represented before the re-assessing authority and produced documentary evidence to canvass that even when goods are imported from Taiwan, they would be eligible for Safeguard Duty exemption. 2.2. This stand of the appellant was accepted. The said Bills of Entry were re-assessed and the exemption claimed by the appellant in respect of all the four Bills of Entry was granted. 2.3. Subsequently, the appellant imported 30 more consignments wherein the Customs electronics system accepted their self-assessment without raising any query about the applicability of Safeguard Duty for such imports, which took place between September, 2018 and March, 2020. 3. Subsequently, a Show Cause Notice was issued by the Directorate of Revenue Intelligence (DRI) on 19.09.2020, taking the ground that the appellant is not eligible for the exemption claimed towards Safeguard Duty since "Taiwan" is a different country and the country's name is not specifically mentioned ....
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....ted 16.07.2018, "Taiwan" cannot be considered as a part of China and hence, that country has to be treated as a separate country; Since its name is not included in the relevant Notification, the appellant is not eligible for Safeguard Duty exemption. 5.1. So far as the ground of non-filing of appeal against the re-assessed Bills of Entry is concerned, he submits that after re-assessments are completed, there are other agencies like the DRI which go deep into the issue and undertake investigations; after proper investigation the present proceedings have been initiated against the appellant herein. 5.2. In view of these submissions, he prays that the appeal be dismissed. 6. Heard both sides, perused the appeal papers and the documents placed before us. 7. We find that, as canvassed by the Ld. Senior Counsel for the appellant, the issue is not that of a simple self-assessment by the appellant. The issue was very much raised by the Customs website wherein the exemption sought towards Safeguard Duty had been denied. The appellant presented their documents and arguments, based on which, subsequently, the four Bills of Entry filed by them were re-assessed and the consignments ....
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...., has gone into this issue in a detailed way and has held as under : "21. In support of his contention that Sections 11A and 35E are independent of each other, Mr. Rajnish Pathiyil, learned standingcounsel for the Department cited the following decisions : (i) Union of India v. Jain Shudh Vanaspathi Ltd. [(1996) 86 E.L.T. 460 (S.C.)] (ii) Asian Paints (India) Limited v. Collector of Central Excise [(1994) 54 ECR 173 (FB of the Tribunal) = 1994 (73) E.L.T. 433(Tribunal)] (iii) Asian Paints (India) Limited v. Collector of Central Excise [2002 (142) E.L.T. 522 (S.C.)] (iv) Sivananda Pipe Fittings Ltd. v. Superintendent of Central Excise [1998 (97) E.L.T. 52 (Mad.)] (v) Commissioner of Central Excise v. Gillooram Gaurishankar [MANU/JH/0088/2002] (vi) Commissioner of Central Excise v. PRICOL Ltd. [2015 (320) E.L.T. 703 (Mad.) = 2015 (39) S.T.R. 190 (Mad.)], and (vii) Commissioner of Customs & Central Excise v. Panyam Cements & Minerals Industries Ltd. [2016 (331) E.L.T. 206 (A.P.)]. 22. In contrast, Mr. Raghavan Ramabadran, learned counsel for the appellant/assessee placed strong reliance upon the judgment ....
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....efore, the detailed procedure prescribed under Section 11B not only regulates the manner and form, in which, an application for refund is to be made, but also prescribes a period of limitation, method of adjudication as well as the manner, in which, such refund is to be made. In simple terms, Section 11B is a complete code in itself. 31. Therefore, it is clear that what is required of an Assistant Commissioner or Deputy Commissioner under sub-section (2) of Section 11B is to adjudicate upon the claim for refund. The expression 'Adjudicating Authority' is also defined in Section 2(a) to mean any authority competent to pass any order or decision under this Act, but does not include the Central Board, Commissioner of Excise (Appeals) or the Appellate Tribunal. Hence, the power exercised under Section 11B is that of an adjudicating authority and the order passed is certainly one of adjudication. 32. It is only when an order of adjudication is passed under Section 11B that a person, who makes a claim for refund, will get his money back. This assumes significance in the light of the fact that by the proceedings dated 29-9-1998, the appellant/assessee was informed of the....
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....missioner can pass an order for refund under Section 11B(2) and an Assistant Commissioner can invoke the proceedings for recovery under Section 11A(1). 37. In other words, by reading the provisions of Section 11A in such a manner as the learned standing counsel would request us to do, we would be recognizing a power in a Subordinate Authority to invoke the power of recovery under Section 11A, despite the fact that a refund application has been adjudicated upon by a Superior Authority under Section 11B. We should keep this fact in mind before dealing with the interplay between Sections 11A and 35E. 38. As we have seen from the language employed in Section 35E, which we have extracted above, a limited revisional jurisdiction is conferred upon the Principal Commissioner and Commissioner of Excise in sub-section (2) of Section 35E. This power is not actually to correct any error directly, on the part of an adjudicating authority. This power is available only for directing the Competent Authority to take the matter to the Commissioner (Appeals). 39. Therefore, it was always open to the Principal Commissioner or the Commissioner of Central Excise to examine the....
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.... 11B. What happens in a case where an adjudication takes place under Section 11B did not at all fall for consideration in Asian Paints (India) Limited. 43. The decision of this Court in Sivanandha Pipe Fittings Ltd., was also on the point as to whether it is open to the authorities to take recourse to one remedy where several remedies are available. It is not the contention in this case that there are plural remedies available to the Department. The contention in this case is as to whether, after having allowed an adjudication under Section 11B to attain finality, therewas any remedy open to the Department at all under Section 11A. Therefore, the decision in Sivanandha Pipe Fittings Ltd., is also of no assistance to the Department. 44. Insofar as the decision of the Jharkhand High Court in Gillooram Gaurishankar is concerned, the question that was referred to the High Court was whether the statutory remedies under Section 11A(1) will have to be exercised, to the exclusion of the remedies availableunder Section 35E(2) or not. In Paragraph 4 of the decision, the Jharkhand High Court rightly held that there was no necessity to issue a showcause notice under Section 1....
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....2001 and it was contended that such an order could be rectified only through an appeal mechanism prescribed under Section 35E(2). As seen from Paragraph 11 of the decision, the contention of the assessee was that Section 11A does not contain a non obstante clause and that therefore, it cannot be invoked to nullify the appeal remedy available to the Department under Section 35E(2). 50. The very same argument now advanced by the Department to the effect that Sections 11A and 35E operate in two different independent fields was raised by them. After considering the issue elaborately and also after taking note of the decision in Asian Paints (India)Limited approved by the Supreme Court, this Court came to the conclusion in Paragraph 23 as follows : "In our opinion, there is no nexus between Section 11A and Section 35E. Section 11A does not indicate that the legislature intended to override Section 35E. Both sections have to be read harmoniously. In the present case, Annexure-I certificate has been issued in favour of the petitioners from time-to-time on executing B-8 security bond and on furnishing a bank guarantee. The Department has to follow the procedure under Sect....