N.M. NAGPAL (P) LTD. Vs. CC

JUDGEMENT

(1.) In these two appeals arising out of two Orders -in -appeal by the Commissioner (Appeals) the issue involved is whether Special Additional duty of Customs is leviable under Section 3A of the Customs Tariff Act and if so at what rate?

(2.) Shri K.L Handa, learned Consultant, submitted that they had imported Styrene Monomer which was stored by them under bond in their tank; that in Appeal No. C/593/2000 -C they filed 5 Bills of Entry on 25.5.98 and one Bill of Entry on 29.5.98 for a quantity of 72 M.T. which was assessed to duty by the proper officer, that the duty so worked out was deposited by them during the period from 27.5.98 to 30.5.98; that thus the goods were cleared for home consumption under Section 47 of the Customs Act; that however, owing to non -availability of tankers from their transporter the said quantity of 72 M.T. could not be transported which was placed in the tank itself; that this duty paid goods was allowed to be cleared on 6.6.98 that by that time Special Additional duty of Customs came into effect from 2.6.98 and they were allowed to clear the duty paid goods only on payment of SAD @ 8% that they filed a refund claim on 4.8.98 relying upon the decision of the Orissa High Court in the case of Orissa Cement Ltd. v. Suptd. , that the Dy. Commissioner rejected the refund claim which has been confirmed by the Commissioner (Appeals). The learned Consultant submitted that both the orders by the lower authorities have been passed without appreciating the correct facts inasmuch as whereas the refund claim was for the entire amount of SAD paid by them @ 8% the finding in both the orders is that they were not entitled to refund the differential duty @ 4% because there was no evidence that the goods were removed after 13.6.98; that Notification No. 35/98 dated 13.6.98 was issued reducing the rate of SAD from 8% to 4%. In respect of Appeal No. C/594/2001 -C the learned Consultant submitted that they had filed 5 ex -bond Bills of Entry on 5.6.98 for clearance of 60 M.T. of the imported material for home consumption; that after assessment the duty was paid by them including the SAD @ 8% that this quantity, however, was actualy cleared by them from warehouse after 13.6.98 and accordingly they had filed a refund claim on the ground that SAD was payable by them only @ 4% in terms of Notification No. 35/98, that the Dy. Commissioner rejected their refund claim on the ground that they had not submitted any proof to show that the goods were actually removed after 13.6.98. The Commissioner (Appeals) also rejected their appeal on the same ground.

(3.) On the other hand Shri R.C. Sankhla, learned D.R. submitted that as far as Appeal No. C/594/2001 -C is concerned the appellants have not given any proof to show that the goods were actually removed from the bonded tank on or after 13.6.98 when the notification reducing the rate of SAD was issued. In respect of Appeal No. C/593/2001 -C the learned DR referred to the provisions of Section 68 of the Customs Act which provides that the importer of any warehouse goods may clear them for home consumption by filing a Bill of Entry for home consumption, by paying the import duty leviable on the goods and after an order for clearance of goods for home consumption has been passed by the proper officer; that as the goods had been cleared admittedly after 2.6.98 from the warehouse they were liable to pay SAD @ 8% on the goods removed from warehouse.