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Bhushan Power & Steel Ltd V/S Commissioner of Customs, New Delhi

Company & Directors' Information:- DELHI POWER COMPANY LIMITED [Active] CIN = U40103DL2001SGC111528

Company & Directors' Information:- BHUSHAN POWER & STEEL LIMITED [Active] CIN = U27100DL1999PLC108350

Company & Directors' Information:- BHUSHAN LIMITED [Not available for efiling] CIN = U27104CH1999PLC022266

Company & Directors' Information:- DELHI STEEL CORPORATION LIMITED [Strike Off] CIN = U27310DL1956PLC002613

Company & Directors' Information:- S. G. POWER AND STEEL PRIVATE LIMITED [Active] CIN = U14290DL2012PTC240718

Company & Directors' Information:- R. S. STEEL AND POWER PRIVATE LIMITED [Active] CIN = U70100CT2009PTC021362

Company & Directors' Information:- BHUSHAN AND CO PRIVATE LIMITED [Strike Off] CIN = U74899DL1981PTC011310

Company & Directors' Information:- BHUSHAN INDIA PRIVATE LIMITED [Strike Off] CIN = U74300DL1998PTC092538

Company & Directors' Information:- S BHUSHAN AND CO PRIVATE LIMITED [Strike Off] CIN = U74999DL1982PTC012943

    Final Order No. C/A/56563/2017-CU(DB) in Appeal No. C/50935/2017

    Decided On, 13 September 2017

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, MEMBER

    For Petitioner: Kishore Kr. Acharya and S.N. Panda, Advocates And For Respondents: Govind Dixit, DR

Judgment Text

1. The present appeal is filed by the assessee-appellants against the Order-in-Original No. 06/NKU/(09)/ADG(Adj.)/DRI/N. Delhi/2016-17, dated 9-2-2017 passed by the Addl. Director (Adj.), DRI, New Delhi. The period in dispute is 2013-14. The brief facts of the case are that, during the period under consideration, the assessee-appellants were enjoying the double benefit for the export promotion of the goods known as 'Status Holder Incentive Scrips (SHIS)' and 'Zero Duty Export Promotion Capital Goods (EPCG)' Licences. The assessee-appellants have utilized the eight SHIS issued in financial year 2013-14 for the purpose of import of goods by debiting customs duty from the said licences and availed duty benefit for an amount of Rs. 3,68,70,593/- and at the same time they also utilized twenty-three Zero Duty EPCG licences issued in their favour in the same fiscal year. On the basis of information received by the DRI, show cause notices were issued on 1-6-2016. It is the claim of the assessee-appellants that immediately thereafter, they have surrendered the SHIS benefit in cash. Still the duty demand and penalty was raised by the Department. Being aggrieved, the assessee-appellants have filed the present appeal.

2. With this background, we have heard Shri Kishore Kumar Acharya, learned counsel for the assessee-appellants and Shri Govind Dixit, learned DR for the Revenue.

3. The learned counsel for the assessee-appellants has drawn our attention to the Public Notice No. 30/2015, dated 8th September, 2016 wherein it is mentioned that exporters who have been issued or availed such simultaneous benefit of both the schemes shall be allowed flexibility, to the extent specified in this public notice, to choose one of the two schemes. Further, the learned counsel has drawn our attention to the C.B.E. & C's Circular No. 45/2016, dated 23-9-2016 wherein the situation for availing the simultaneous benefit has been discussed. The Ministry directed that pending issues relating to the simultaneous issuance or availing of zero duty EPCG/Post Export EPCG and SHIS shall be decided in terms of the Public Notice. The learned counsel submits that when the Board Circular has been issued, then the matter will have to be decided as per the Public Notice (supra). To support his contention, he relied upon the ratio laid down by the Hon'ble Supreme Court in the case of Paper Products Ltd. v. Commissioner of Central Excise [1999 (112) E.L.T. 765 (S.C.)], wherein it is stated that Board Circular is binding on the Department. To conclude his arguments, the learned counsel submits that the benefit availed under SHIS Scheme has already been surrendered by the assessee-appellants, hence there is no question to demand duty or penalty. Lastly, he made a request to set aside the impugned order.

4. On the other hand, the learned DR for the Revenue supported the impugned order. He submits that only after issuance of the show cause notice by the DRI, the assessee-appellants had awaken and deposited the money, but without interest. The learned DR drawn our attention to para 5.4.7 of the impugned order wherein it is categorically mentioned that the interpretation of contentious availment of SHIS and EPCG authorization specified in the Public Notice shall be final and binding. He further submits that a person who claimed any concession or exemption has to establish that he is entitled to that concession or exemption. It is his submission that the assessee-appellants has wrongly availed the exemption benefit by interpreting the same in the manner suits to them. The Notification will have to be interpreted as a whole and doctrine of election will not apply.

5. We have heard both sides and considered the material available on record. Undoubtedly, the assessee-appellants were availing the simultaneous benefit of the two schemes, mentioned above, and only after pointing out by the DRI, they surrendered the benefit under SHIS, but without any interest. Interest is mandatory. Tribunal has no power to waive or restrict as per the ratio laid down by the Hon'ble Supreme Court in the cases of C.I.T. v. Sant Ram Mangat Ram Jewellers : 264 ITR 564 SC and CIT v. INSIL Co. Ltd : 278 ITR 1 SC.

6. Moreover, during the course of arguments, it was stated that there is a mistake in computation of the demand for the reason that the Public Notice dated 8th September, 2016 (supra) has given an Annexure for getting the benefit in different years, which was not followed by the adjudicating authority.

7. By considering the totality of the facts and circumstances of the case, we are of the view that the Circular is binding on the Department as per the ratio laid down by the Hon'ble Supreme Court in the case of Collector of Central Excise, Patna v. Usha Martin Industries: 1997 (94) E.L.T. 460 (S.C.). In the impugned order, the adjudicating authority has already mentioned that the said Circular is clarificatory in nature, so it is applicable retrospectively.

8. From the record, it appears that t

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he Annexure to the Public Notice dated 8th September, 2016 (supra) has not been followed strictly in the instant case. The interest has also not been computed. When it is so, then we set aside the impugned order and remand the matter to the adjudicating authority to decide the issue de novo, in the light of the above discussion, but by providing a reasonable opportunity to the assessee-appellants to present their case with liberty to file additional evidence, if any, as per law. In the result, appeal filed by the assessee-appellants is allowed by way of remand.