ESSAR OIL LTD. Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) AFTER dispensing with the condition of pre -deposit of duty and penalty, we proceed to decide the appeal itself inasmuch as the Commissioner (Appeals) has dismissed the appeal for non -compliance with the stay order passed by him. We have seen the stay order passed by the Commissioner (Appeals) which does not deal either with merits of the case or financial condition of the appellant and is a cryptic order directing the appellants to deposit 50% of the duty amount and 50% of the penalty amount. When the appellants filed a modification application before the Commissioner (Appeals), he observed that he does not have power to modify the stay order. However, we find that the above view of the Commissioner (Appeals) is not correct inasmuch as, the Division Bench of Karnataka High Court in the case of M.I. Metal Sections Pvt. Ltd. v. C.C.E., Bangalore - 1995 (75) E.L.T. 470 (Kar.) has held that interim orders are always open to the modification. There cannot be any quarrel on the above settled principle of law.

(2.) IN any case, we have ourselves heard both sides on merits of the case. Notification No. 53/03 -Cus. dated 1 -4 -03 exempts the imported goods from the whole of the Special Additional Duty of Customs leviable thereon under Section 3A of the Customs Tariff Act. Section 3A became Section 3(5) with effect from 13 -5 -05. However, the corresponding change in the Notification i.e. replacing Section 3A with Section 3(5) was not made. The said amendment was carried subsequently with effect from 19 -12 -2006. Inasmuch as, during the relevant period, the notification used the expression Section 3A though the said Section was not even on the statutory book having been replaced with Section 3(5) and the authorities below entertained a view that exemption cannot be permitted. We, prima facie, do not find any merit in the above view of the authorities below. The Honble Supreme Court in the case of Government of India v. Indian Tobacco Association reported in 2005 (187) E.L.T. 162 (S.C.) adopting their doctrine of fairness and the doctrine of construction of an exemption notification with regard to its object and purport which it seeks to achieve has held that such type of amendment has to be treated as retrospective amendment. We find that by applying the ratio of the above decision, the appellant is prima facie entitled to the benefit of the Notification. We also note that in any case, another Notification No. 20/06, dated 1 -3 -2006 exempts the goods imported from payment of Special Additional Duty of Customs, which benefit was claimed by the appellant during the adjudication proceeding but stands rejected on the ground that it was not claimed initially at the time of import. The above reasoning adopted by the original adjudicating authority is not in accordance with the settled principles of law. The assessee is entitled to claim the benefit of Notification when the Revenue itself has reopened the assessment and the benefit is otherwise available in the light of any other Notification. We are of the view that appellant has prima facie a strong case in their favour so as to dispense with the condition of pre -deposit. We, accordingly, allow the stay petition. Inasmuch as the appeal does not stand decided by the Commissioner (Appeals), we remand the matter to him to decide the same on merits without insisting on any pre -deposit. The stay petition and the appeal get disposed of in the above terms.