COMMISSIONER OF CUSTOMS, JAMNAGAR Vs. RELIANCE INDUSTRIES LTD.

JUDGEMENT

(1.) ALL the appe als filed by the Revenue against the impugned order of Commissioner (Appeals), are being disposed off by a common order as the issue involved is identical.

(2.) AS per facts on record, the respondent herein M/s. Reliance Industries Limited is a 100% EOU they have imported various consignments of crude petroleum oil at Sikka Port and sought the clearance of the same without payment of duty by filing into -Bond bill of entry. The said goods were taken clearance of and deposited in the bonded warehouse situated within the jurisdiction of the Assistant Commissioner, Central Excise, Jamnagar Division, without payment of duty, under the provisionally assessed warehousing bills of entry, against procurement certificate issued by the proper officer of Central Excise. In some of the cases, the clearances were affected after payment of National Calamity Contingent Duty (NCCD), Education Cess and Secondary and Higher Education Cess (SHE Cess), levied under the Section 134 of Finance Act, 2003, under protest. Filtering out the unnecessary details in respect of various bills of entries, whether the appellants paid the said NCCD, SHE Cess and Education Cess, at the time of clearance under protest or the demands were subsequently raised in respect of the said NCCD and Cess, the core question required to be decided in the present appeal is as to whether the respondents are liable to pay the National Calamity Contingent Duty, SHE and Education Cess on the various consignments of imported crude petroleum oil.

(3.) AFTER hearing both the sides, we find that the respondents took number of pleas before the Commissioner (Appeals). It was contended by them that since no basic custom duty is required to be paid by them in terms of the provisions of Notification No. 52/2003 -Cus., dated 31 -2 -2003, the same would also include the exemption to NCCD based on the ratio of the Tribunals decision in the case of Toyota Kirloskar Motor Pvt. Limited v. CCE, Bangalore - 2007 (217) E.L.T. 403 (Tri. - Bang.). In other words, the respondents contention was that inasmuch as they are exempted from payment of basic custom duty, they would also be exempted from payment of NCCD. They also contended that the object underline the EOUs scheme is, that the goods imported and used by them in the EOU, should not bear any duty whatsoever. Para 6.2 of the Foreign Trade Policy provide for imports of the goods by an EOU without payment of duty. Customs exemption notification is only meant to implement and give effect to the said provisions of the Foreign Trade Policy and inasmuch as the customs duty was exempted by virtue of exemption Notification No. 52/2003, the said exemption would also apply to NCCD in view of the Section 134(4) of the Finance Act, 2003. Alternatively, they submitted that that they had warehoused the goods in their 100% EOU and have not cleared the same for home consumption. Duty is payable only when the goods warehoused are sought to be cleared for home consumption under Section 68, at the rate in force on the date of filing of the bill of entry for home consumption as provided in the Section 25(b) of the Act. Since there was no clearance of the imported goods from warehouse in these cases, the question of payment of any duty on such goods, does not arise. For the above proposition they relied upon the Tribunal decision in the case of Natural Stone Exports Limited v. CCE - 2006 (198) E.L.T. 440; DSL Software (India) Limited v. CCE - 2005 (181) E.L.T. 250; CCE v. Infosys Technology Limited - 2003 (159) E.L.T. 863.