2024(11)LCX0016

Ratan Mica Exports Pvt. Ltd.

Versus

Commissioner of Customs

Customs Appeal No. 75240 of 2021 decided on 11-11-2024

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH – COURT NO. 1

Customs Appeal No. 75240 of 2021

(Arising out of Order-in-Appeal No.KOL/CUS(A/P)AKR/01/2021 dated 01.01.2021 passed by Commissioner of Customs(Appeals), Kolkata

M/s. Ratan Mica Exports (P) Ltd.                                    : Appellant
Court Road, P.B. No. 127, Giridih, Jharkhand-815 301

VERSUS

Commissioner of Customs(Airport)                                : Respondent
Custom House, 15/1,Strand Road, Kolkata-700 001.

APPEARANCE:

Shri B.N.Pal, Advocate for the Appellant

Shri Tariq Sulaiman, Authorized Representative for the Respondent

CORAM:

HON’BLE SHRIASHOK JINDAL, MEMBER (JUDICIAL)
HON’BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL)

FINAL ORDER NO. 77263/ 2024

DATE OF HEARING :21.10.2024

DATE OF DECISION: 11.11.2024

Order : [Per Shri Ashok Jindal]

    The appellant is in appeal against the impugned order demanding a sum of Rs. 1,86,135/- on account of non payment of cess alongwith interest.

2. The facts of the case are as under :

(a) The appellant is a registered exporter of Fabricated Mica products. The said appellant/exporter had exported “Fabricated Mica” during the month of May, 2014 to August, 2014 vide 22 (Twenty Two) shipping bills as mentioned in the impugned Order-in- Original.

(b) During the scrutiny of records it was detected that though cess @3.5 % on exports of Mica products under HS Code 25.25 & 68.14 was leviable, but no such cess was levied or not paid in respect of the impugned shipping bills which were self assessed by the appellant/exporter without the payment of the mica cess applicable on such products.

(c ) Therefore, a Demand Cum Show Cause Notice was issued from F. No. S41 (Misc)-25/14 DBK (Pt) dated 30.04.2015, under section 28(1) of the Customs Act, 1962, whereby the appellant was directed to show cause as to why the aforesaid export cess should not be recovered from them u/s 28 of the Customs Act, 1962.

(d) Thereafter, the lower authority after following the due process passed the impugned Order-in-Original thereby confirming the demand “Cess” leviable under section 28 of the Customs Act, 1962 along with appropriate interest under section 28AA of the Customs Act, 1962.

3. The said order was challenged before the Ld. Commissioner (Appeal) who affirmed the order of the Adjudicating Authority. Therefore, the appellant is before us.

4. The Ld. Counsel appeared on behalf of the appellant submits that the appellant filed 22 shipping bills for export of Mica during the period 05.05.2014 and 14.08.2014. The adjudication took place and goods were exported, later on a demand notice was issued on 30.04.2015. The same is not sustainable because no order under Section 17(5) of the Custom Act has been passed to demand cess from the appellant.

5. Further the “Let Export Order” were passed by the proper officer under Section 51 of the Customs Act, 1962 and the assessment has been finalized. In that circumstances, without challenging the said order, it cannot be interfered as held by Parker Leather Export Company Vs. Collector of Customs, Madras reported in 1987 (29) ELT 53 (Tri.).

6. He further relied in the case of Biswanath & Co. & ANR (including the appellant) vs. UoI & Ors. reported in 2010 (257) ELT 37 that the Show Cause Notice has been issued beyond the period of limitation. Therefore, demands are not sustainable.

7. He further submitted that as there is no proposal in the Show Cause Notice therefore, interest cannot be demanded from the appellant.

8. On the other hand the Ld. Authorized Representative opposed the contention of the appellant. The Ld. Counsel of the appellant submits that in this case provision under Section 17(5) of the Customs Act are not applicable to the facts of this case. As there is a no case of enhancement of duty under Section 17(4) of the Customs Act, 1962.

9. He further submitted that in this case, the Show Cause Notice has been issued by invoking provision of Section 28 of the Customs Act, 1962. Therefore, on detection that the appellant has not paid the cess, in that circumstances, the decision in the case of Parker Leather Export Company (Supra) is not applicable to the facts of the case.

10. He also submitted that the decision in the case of Biswanath & Co. (Supra) is not applicable to the facts of this case as during the impugned period the period to issue Show Cause Notice was one year. Therefore, the Show Cause Notice was issued to the appellant in time.

11. He also submitted that the appellant is liable to pay interest which is mandatory even if duty is not paid. To support this he relied on the decision of C.C.E. Vs Padmashri VV Patil SSK Ltd [(2007)215 E.L.T. 23 (HC BOMBAY)]. He also relied on the decision of CCE Vs. Kenna Metal Wasia (India) Ltd. [(2012) 280 ELT 381 (Karnataka HC)].

12. He also relied on Futnani Steels Vs. CCE [(2009) 235 E.L.T. 869].

13. Heard the parties. Considered the submissions.

14. In this case it is an admitted fact that at the time of export of goods the appellant was liable to pay cess which appellant failed to pay, therefore, a Show Cause Notice under Section 28 was issue within time to the appellant for the export made during the period 05.05.2014 and 14.08.2014 on 13th May, 2016. As with effect from 2.4.2011 under Section 28 Show Cause Notice could have been issued within one year. Therefore, the contention of the appellant that Show Cause Notice is barred by limitation is not sustainable.

15. Accordingly, we hold that demands confirmed against the appellant are within time.

16. The appellant has taken the argument that the orders under Section 17(5) of the Customs Act, 62 is not passed therefore, the proceedings are not sustainable.

17. We find that in this case there is no question of enhancement of payment of duty by the Adjudicating Authority by reassessing the goods under Section 17(4) of the Customs Act, 1962.

18. Infact provision of Section 17(4) of the Customs Act are not involved in this case. Therefore, question of passing order under Section 17(5) of Customs Act does not arise. Accordingly, the said argument fails.

19. The Ld. Counsel submitted that in terms of Section 129 D(2) of the Customs Act, the proceedings against the appellant are not sustainable. We find that in this case the Show Cause Notice has been issued to the appellant under Section 28 of the Customs Act, 1962 for short payment or non payment of cess by the appellant. Therefore, the said argument also fails.

20. Further the Ld. Counsel argued that as Show Cause Notice does not demand interest from the appellant, we find that in this case, the Show Cause Notice is not proposing recovery of interest from the appellant and the case was relied upon by the Ld. Authorized Representative in support of demand of interest, and all those cases that Show Cause Notice has demanded the interest and therefore, it was held that the appellant is liable to pay interest. As there is no proposal of demand of interest in the Show Cause Notice, the demand of interest is set aside.

21. In view of the above discussion, we pass the following order :

We confirm the demand of cess payable by the appellant and no interest is payable by the appellant.

22. In these terms appeal is disposed of.

( Pronounced in the open court on 11. 11. 2024 )

(ASHOK JINDAL)
MEMBER (JUDICIAL)

(K. ANPAZHAKAN)
MEMBER (TECHNICAL)