Case Law Details
Commr. of Customs (Port) Vs Uma Export Ltd. (CESTAT Kolkata)
Held that the importer is allowed to choose the more beneficial provision and cannot be forced to opt for / follow the non-beneficial provision. Accordingly, the goods in question Peas [Pisum Sativum] was present both in Sl No.20 and Sl No.20A of the basic Notification No.50/2017 Cus dated 30.6.2017 and hence assessee eligible to avail benefit of NIL rate of BCD.
Facts- The main issue involved in the present case is that whether during the period under review the goods in question, Pisum Sativum [Peas] falling under Customs Tariff Heading 0713 10 00, are required to be assessed @ NIL rate of BCD in terms of Sl No.20 as claimed by the importers or the goods are required to be assessed @50% rate of BCD in terms of Sl No.20A, as claimed by the Revenue.
Conclusion- In the present case, we observe that during the period 23.12.2017 to 28.02.2018, the goods in question Peas [Pisum Sativum] was present both in Sl No.20 and Sl No.20A of the basic Notification No.50/2017 Cus dated 30.6.2017 till the amendment vide Notification No.29/2018 Cus dated 1.3.2018 was carried out. Applying the case laws cited supra, the importers would be eligible to claim NIL rated BCD and file the consequent Refund claim. Accordingly, we hold that the importers have correctly sought Refund claim on the ground that they were not required to pay 50% BCD in the first place.
The High Courts and Tribunals have been consistently taking the view that the assessee is entitled for the more beneficial Notification, if there are two Notifications on the same issue.
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