Case Law Details
Midas Treads (India) Pvt Ltd Vs Commissioner of Customs (CESTAT Bangalore)
CESTAT Bangalore held that no excise duty is leviable on the subject goods i.e. [imported ‘Insoluble Sulphur’] and therefore no additional duty will be levied. Accordingly, levy of CVD @10% unsustainable.
Facts- The Appellant had imported ‘Insoluble Sulphur’ under bill of entry No. 6108813 dated 27.02.2012. At the time of filing the bill of entry, the excise duty was ‘Nil’ as per Chapter 25 of the Central Excise Tariff Act, 1985 for the goods classifiable under Customs Tariff Item entry 25030090. Accordingly, the Appellant filed the bill of entry. However, the assessing authority assessed the bill of entry to 10% CVD at the time of clearance of the goods. Commissioner (Appeals) dismissed the appeal. Aggrieved by the order of Commissioner (Appeals), present appeal is filed.
Conclusion- Held that at the time of import of the goods, appellant had made true declaration regarding classification under Customs Tariff item entry 25030090 and value declared by the Appellant was also accepted by the Department. As per Section 3(1) of the Customs Tariff Act, any article which is imported into India, shall in addition to the duties of customs levied under the Customs Act, be liable to a duty equal to the excise duty for the time being leviable on the like articles produced or manufactured in India. As per the Central Excise Tariff Act, 1985, against the subject Central Excise Tariff item entry 25030090 rate of duty is ‘NIL’. Therefore, no excise duty is leviable on the subject goods and there is no additional duty that the goods can be made liable to. However, without specifying any reason, assessing authority had levied CVD @ 10% for the goods, which are subject to ‘Nil’ rate of duty.
FULL TEXT OF THE CESTAT BANGALORE ORDER
The issue in the impugned order is whether the additional duty charged by the Respondent while importing the goods is sustainable, since there is no Excise duty applicable for the goods imported by the Appellant at the relevant time. The Appellant had imported ‘Insoluble Sulphur’ under bill of entry No. 6108813 dated 27.02.2012. At the time of filing the bill of entry, the excise duty was ‘Nil’ as per Chapter 25 of the Central Excise Tariff Act, 1985 for the goods classifiable under Customs Tariff Item entry 25030090. Accordingly, the Appellant filed the bill of entry. However, the assessing authority assessed the bill of entry to 10% CVD at the time of clearance of the goods. Aggrieved by the said assessment, an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) as per impugned order dismissed the appeal on the grounds that; assessment order passed by the Department was based on the value and classification declared by the importer, it was accepted by the appellant and the duty was voluntarily paid by the Appellant and the goods were cleared; there was no enhancement of the value by the Department leading to an increase in the assessed duty; the Appellant did not express any dissent in writing at the time of clearance of goods nor had asked for a speaking order in terms of Section 17 of the Customs Act, 1962; the order has reached finality and is not open to appeal; thus, the appeal is rejected. Aggrieved by the order of Commissioner (Appeals), present appeal is filed.
2. When the appeal came up for hearing, Learned Counsel drew our attention to Chapter 25, where the rate of duty is Nil for the goods falling under the said Chapter of the Central Excise Tariff, 1985. The Learned Counsel further submits that; when an assessment is made under Section 17 of the Customs Act, 1962, the assessment order reached finality and only open to appeal and there is no other remedy available to the Appellant; the goods were cleared, facts being so, impugned order rejecting the appeal on the ground that the assessment reached finality is unsustainable. Learned Counsel further submits that; the Appellant is not challenging the value assessed by the Adjudicating authority; hence, acceptance of the declared value is not a justification to assess to any rate of duty, illegally. The learned counsel further contended that as per section 128 of the Customs Act, 1962 any decision or order passed under the Act is an appealable order and relied on various decisions including the decision of the Tribunal in the matter of M/s Ruchi Soya Industries Vs. CC-2013 (296) E.L.T 114 (Tri. Ahmedabad), wherein it is held that the assessment on bill of entry is an appealable order;
3. The Learned Authorised Representative (AR) for the Revenue reiterated the finding in the impugned order.
4. Heard both sides and perused the records.
5. We find that it is an admitted fact that at the time of import of the goods, appellant had made true declaration regarding classification under Customs Tariff item entry 25030090 and value declared by the Appellant was also accepted by the Department. As per Section 3(1) of the Customs Tariff Act, any article which is imported into India, shall in addition to the duties of customs levied under the Customs Act, be liable to a duty equal to the excise duty for the time being leviable on the like articles produced or manufactured in India. As per the Central Excise Tariff Act, 1985, against the subject Central Excise Tariff item entry 25030090 rate of duty is ‘NIL’. Therefore, no excise duty is leviable on the subject goods and there is no additional duty that the goods can be made liable to. However, without specifying any reason, assessing authority had levied CVD @ 10% for the goods, which are subject to ‘Nil’ rate of duty. In the facts and circumstances the appeal is sustainable on the merit.
6. As regarding the finding of the Adjudicating authority, it is well settled that if an assessment is not acceptable to the appellant, only remedy available to the Appellant is to challenge the same by way of filing an appeal. Therefore, the appeal filed by the Appellant ought to have been considered by the Appellate authority on merit rather than rejecting the same on the ground that in the absence of any enhancement of value or change of classification as declared by the Appellant, it cannot be presumed that there is no dispute.
7. In the facts and circumstances, the appeal is allowed with consequential relief, if any in accordance with law.
(Order Pronounced in Open court on 03.09.2024)
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