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CX – In the absence of any bar in the notification itself, it is open to an assessee to take benefit of more than one notification: CESTAT

2019-TIOL-2494-CESTAT-MUM

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH, MUMBAI

Excise Appeal No. 1965 of 2010

Arising out of Order-in-Appeal No: SR/292/NGP/2010, Dated: 15.09.2010 
Passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Nagpur

WITH
(i) Excise Appeal No: 2064 of 2010 (Mahindra & Mahindra Ltd)
(ii) Excise Appeal No: 2065 of 2010 (Mahindra & Mahindra Ltd.) and
(iii) Excise Appeal No: 2138 of 2010 (Commissioner of Central Excise, Mumbai-V)

Arising out of Orders-in-Appeal No: SR/293/NGP/2010, Dated: 16.09.2010, SR/383/NGP/2010, Dated 20.10.2010
Passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Nagpur and Order-in-Appeal No: SB(105)105/MV/2010, Dated: 23.09.2010
Passed by the Commissioner of Customs, Central Excise (Appeals), Mumbai Zone – I

Date of Hearing: 29.10.2018
Date of Decision: 29.10.2018

MAHINDRA AND MAHINDRA LTD
AKURLI ROAD, KANDIVLI (E), MUMBAI-400101

Vs

COMMISSIONER OF CENTRAL EXCISE
TELANGKHEDI ROAD, CIVIL LINES, POST BOX NO. 81
NAGPUR-440001

Appellant Rep by: Shri TC Nair, Adv.
Respondent Rep by: Shri N N Prabhudesai, Superintendent (AR)

CORAM: D M Misra, Member (J)
C J Mathew, Member (T)

CX – The issue in dispute is categorization of goods that were exported under bond as fully exempt in light of existence of two notifications, one prescribing ‘nil’ rate of duty and the other a ‘concessional rate’- The issue has been considered in Mahindra and Mahindra Ltd 2018-TIOL-603-CESTAT-MUM which followed the judgement of the High Court of Bombay – The order impugned before first appellate authority merely states that the exports shall not be considered as under bond – As the issue stands decided and it is up to the assessee to avail the benefit of a notification that may be beneficial to them, there can be no flaw in the procedure adopted by assessee herein – In view of order of first appellate authority being limited to the declaration that the goods are not exported under bond, the appeals of Revenue are to be dismissed along with those of the assessee: CESTAT

Appeals disposed of

Case laws cited:

Share Medical Care v. Union of India – 2007-TIOL-26-SC-CUS… Para 3

JSW Energy Ltd v. Union of India – 2013-TIOL-624-HC-MUM-CUS… Para 3

Commissioner of Central Excise, Mumbai -V v. Mahindra and Mahindra Ltd – 2018-TIOL-603-CESTAT-MUM… Para 3

Commercial Tax Officer v. Binani Cements Ltd and Anr – 2014-TIOL-15-SC-CT… Para 6

Sidhimukh Flexible Packaging (P) Ltd v. Commissioner of Central Excise, Indore – 2005-TIOL-427-CESTAT-DEL… Para 6

Jindal Drugs Ltd v. Commissioner [2018 (360) ELT A123 (Tri.Chandigarh)]… Para 6

Gauhati in Sankar Tea Co Ltd & Others v. Collector of Central Excise, Shillong [1985 (21) ELT 679 (Gauhati)]… Para 6

FINAL ORDER NOS. A/88448-88451/2018

Per: C J Mathew:

This is a series of appeals with three having been filed by M/s Mahindra & Mahindra Limited and one by Revenue which are taken up for disposal by this common order.

2. We have heard Learned Authorised Representative for Revenue and the Learned Counsel for the assessee.

3. The issue in dispute is the categorization of goods that were exported under bond as fully exempt in the light of existence of two notifications, one prescribing ‘nil’ rate of duty and the other a ‘concessional rate’. It is the contention of Learned Counsel for the assessee that the issue stands decided by the Tribunal in their own matter  2018-TIOL-603-CESTAT-MUM which followed the judgment of the Hon’ble High Court of Bombay dated 25th June 2014 and of the Hon’ble Supreme Court in Share Medical Care v. Union of India [2007 (209) ELT 321 (SC)] = 2007-TIOL-26-SC-CUS as well as that of the Hon’ble High Court of Bombay in JSW Energy Ltd v. Union of India [2015 (321) ELT 664 (Bom)] = 2013-TIOL-624-HC-MUM-CUS .

4. We find that the issue has been considered in Commissioner of Central Excise, Mumbai -V v. Mahindra and Mahindra Ltd  2018-TIOL-603-CESTAT-MUM which followed the judgement of the Hon’ble High Court of Bombay. In re Share Medical Care it was held that

’16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well settled law is that in case the applicant is entitled to benefit under two different Notifications or under two different Heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the part of the Deputy Director General (Medical), DGHS to the prayer of the appellant in claiming exemption under category 3 of the notification is illegal and improper. The prayer ought to have been considered and decided on merits. Grant of exemption under category 2 of the notification or withdrawal of the said benefit cannot come in the way of the applicant in claiming exemption under category 3 if the conditions laid down thereunder have been fulfilled. The High Court also committed the same error and hence the order of the High Court also suffers from the same infirmity and is liable to be set aside.’

5. In re JSW Energy Ltd, the Hon’ble High Court of Bombay has held that

‘8. Normally, we would not have entertained a petition when the Dy. Commissioner of Customs is still to pass an adjudication order which is subject to statutory appellate procedure. However, in this case the adjudicating authority i.e. the Deputy Commissioner of Customs in his affidavit dated 26 July, 2011 has already taken a stand that only the benefit of Notification No. 46/2011, dated 1 June, 2011 for coal imported from Indonesia is available. Besides, the issue of simultaneous availment of two notifications is still awaiting consideration at the hands of the Central Board of Excise and Customs to which even the petitioner has made a representation by letter dated 20 April, 2013. Further, we find that the Customs, Excise and Service Tax Tribunal has consistently taken a stand that in the absence of any bar in the notification itself, it is open to an assessee to take benefit of more than one notification. This is so held in the matters of Hindustan Lever Ltd. v. Collector – 1989 (40) ELT 388 and Commissioner of Central Excise v. Premier Mashurm Farms – 2005 (190) ELT 511. Similarly as submitted by the petitioner the Apex Court in the matter of Super Cassettes Industries Ltd. – 2006 (202) ELT 739 (S.C.) = 2006-TIOL-135-SC-CUS benefit of more than one exemption notification was extended.’

6. Learned Authorised Representative places reliance on the decision of the Hon’ble Supreme Court in Commercial Tax Officer v. Binani Cements Ltd and Anr [Civil appeal No.336 of 2003 dated 19th February 2014] =2014-TIOL-15-SC-CT , of the Tribunal in Sidhimukh Flexible Packaging (P) Ltd v. Commissioner of Central Excise, Indore [2005 (191) ELT 983 (Tri.Del)] 2005-TIOL-427-CESTAT-DEL and Jindal Drugs Ltd v. Commissioner [2018 (360) ELT A123 (Tri.Chandigarh)] and of the Hon’ble High Court of Gauhati in Sankar Tea Co Ltd & Others v. Collector of Central Excise, Shillong [1985 (21) ELT 679 (Gauhati)].

7. On perusal of the records we find that the order impugned before the first appellate authority merely states that the exports shall not be considered as under bond. As the issue stands decided and it is up to the assessee to avail the benefit of a notification that may be beneficial to them, we find that there can be no flaw in the procedure adopted by the assessee herein. In view of the order of the first appellate authority being limited to the declaration that the goods are not exported under bond, we find that the appeals of Revenue are to be dismissed along with those of the assessee.

8. These are accordingly disposed off.

(Pronounced in open court)

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