Order
1. This is a statutory appeal filed under Section 130-E of the Customs Act, 1962 (for short “the Act”) against the final order bearing No. C-1/377/WZB/2001 dated 12-2-2001 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (hereinafter referred to as “the Tribunal”) in Appeal No. C/107/94-Bom, whereby the Tribunal has rejected the appeal filed by the appellant assessee and confirmed the demand of duty imposed by the Collector of Customs.
2. The appellant is a company registered under the Companies Act, 1956 and is a manufacturer of aromatic chemicals and natural essential oils and is a Trading House. The appellant is the exporter of various dyes and dye intermediate, etc. Between May 1993 and October 1993 the appellant imported various aromatic chemicals and natural essential oils against advance licences granted to it by the Licensing Authorities i.e Joint Chief Controller of Import and Export and Joint Director General of Foreign Trade. All these licences were quantity-based advance licences issued under the duty exemption scheme contained in Chapter XIX of the Import and Export Policy, 1993 and Chapter VII of the Import and Export Policy 1992-97 in respect of the export products: (i) flavoured shivalik mentha base; (ii) methyl hydroxy; and (iii) flavoured aromatic menthol base. Under the scheme, quantity-based advance licences are issued by the Licensing Authority on the recommendation of a Regional Advance Licensing Committee who then scrutinises the applications and decides the quantity and value of goods that can be imported against specified quantity and value of any export product.
3. A facility is given to the importer either to first import and utilise the imported goods in the manufacture of the export product or to export the goods after the application for the licence is made. In the latter case, the exports can be used in discharging the export obligation specified in the licence. After the export obligation is completed, export proceeds realised and LUT redeemed, the imported goods became freely transferable.
4. Prior to 30-6-1962 the provisions of the Hand Book of Procedures 1992-97 issued on 1-5-1992 required that the first licence-holder has to co-relate the goods imported with those utilised in the export product. After the deletion of the requirement of co-relation, the first licence-holder became free to import any goods covered by the licence issued.
5. When the appellant applied for the clearance of the goods by filing bills of entry and complying with all formalities, the Customs Authorities did not permit clearance of the goods saying that they were investigating the matter. By an order of provisional assessment passed by the Collector of Customs on 12-7-1993 and communicated to the appellant by the Assistant Collector of Customs vide order dated 15-7-1993, the appellant could clear the goods against submitting a PD bond for the full duty amount involved and 25% bank guarantee. The appellant promptly complied with this order. Further provisional assessment order dated 4-8-1993 was passed by the Assistant Collector of Customs and it was alleged that in view of the fact that the Joint Director General of Foreign Trade has issued a show-cause notice for cancellation of the advance licences issued to the appellant, the respondent directed that the goods imported would be allowed clearance on payment of appropriate duty applicable in each case. This order was challenged by the appellant by filing writ petition in the Bombay High Court. The High Court while granting leave and pending the final disposal of the said petition allowed clearance of the two consignments imported by the appellant on the appellant's furnishing PD bond for the duty amount involved and bank guarantee for 25% of the duty amount, which the appellant had already furnished in pursuance of the order of the Collector of Customs dated 15-7-1993.
6. The appellant having completed its export obligation, realised export proceeds and got LUT redeemed, imported 26 consignments of aromatic chemicals and natural essential oils in accordance with the licences issued to the appellant. The goods were imported and arrived in India between May 1993 and October 1993.
7. In the meantime 24 more consignments of goods covered by advance licences were imported by the appellant. Again, the Customs Authorities refused to clear the same and the appellant filed Writ Petition No. 1865 of 1993 challenging the actions of the Customs Authorities in not clearing the said goods. The High Court directed that those 24 consignments be also cleared on the same terms i.e on the appellant's furnishing PD bond for the duty amount involved and bank guarantee of 50% instead of 25%.
8. In the notice issued, it was alleged that what was exported by the appellant, the export being prior to the import of the exempted material, was shown on test to be plain mentha oil and therefore the natural essential oil and aromatic chemical were not part of the export product. It was also alleged that no manufacture of the export product had taken place in the premises of Earnest and Co. at Indore. It recorded that the advance licence and DEEC certificates issued to the appellant had been cancelled. The notice proposed denial of the exemption contained in Notification No. 159/90, confiscation of the goods under clause (d) of Section 111 and penalties.
9. In the order-in-original, the Collector denied the benefit of Notifications Nos. 159/90-Cus. and 204/92-Cus. for the reasons that it has not been shown that the condition in the notification that the imported goods were identical in terms of quality and technical characteristics with those used in the export product. It was found that since the natural essential oil and aromatic chemicals imported by the appellant were entitled to be cleared under an advance licence issued to it under the Import Export Policy in the years 1990-93. That the goods were not liable for confiscation and the penalty was not leviable on the importer. The assessee as well as the Department, being aggrieved, filed appeals. The appeals filed by the Department were dismissed and no further appeal has been carried to this Court. Hence, to that extent the order of the Tribunal has become final.
10. In the appeal before the Tribunal, the appellant contended that it was entitled to the benefit of Exemption Notification No. 159/90-Cus. and in the alternative Exemption Notification No. 204/92-Cus., which came into force with effect from 19-5-1992. For getting the benefit of the said notifications, the appellant relied upon a judgment of the Tribunal, South Zonal Bench, Madras in Jayant R. Patel v. Commr. of Customs (1997) 89 ELT 164 (Cegat) wherein the Tribunal after referring to the earlier decision of the Tribunal in Nitco Marble & Granite (P) Ltd. v. Collector (1996) 63 ECR 111 held: (ELT pp. 170-71, para 8)
“A perusal of this decision clearly go to show that if the licensing authority is satisfied that no advance licence can be granted under the DEEC Scheme in regard to the obligation which is said to have been performed, it is open to the authority to decline to grant advance licence. It was also held in that decision that at the third stage in relation to chain, namely, the stage of import, neither the exporter nor the transferee of the licence would be required to be called upon to satisfy the Customs Authorities once again that the duty-free import entitlement was legitimate. It was, therefore, held in that decision that irrespective of whether further examination or formation of opinion is permissible in the ordinary course, the importer cannot be required to prove once again the eligibility for duty-free import of the permitted goods. This is what exactly the Department is now asking the appellant to do. Therefore, the abovesaid decision squarely comes to the aid of the appellant and accordingly, we hold that the appellant is entitled for the benefit of Notification No. 159/90. Alternatively, it was contended that the appellant is also entitled for the benefit of Notification No. 204/92. It is now seen that the appellants have filed the bill of entry after this notification was issued by the Government on 19-5-1992. Therefore, it is a relevant notification which has to be considered. As per clause 4 of Chapter 1 of EXIM Policy, 1992-97, it is made clear that licences issued before the commencement of this policy shall continue to be valid for the import/export of the items permitted thereunder. It is to be seen that whether this licence is a quantity-based licence and the quantity-based licence shall specify the names and descriptions of items to be imported and the quantity of each item to be imported and the c.i.f value of imports. In the present licence, the quantity as well as the value descriptions are clearly mentioned and therefore it is a quantity-based advance licence. This licence issued for the previous policy period will continue to be valid for the present period also in view of the transitional arrangements as contained in para 4 of Chapter 1 of EXIM Policy, 1992-97. This argument of the learned representative is therefore having force and we accept the same. Therefore the alternative argument of the learned representative is that benefit of Notification No. 204/92 applies to the appellant. In this notification Hyderabad is also included as one of the places wherein the import can be made. On this count also, the appellants should get the benefit. Therefore, we are of the view that the import of the goods is permissible and denying the benefit of these two notifications in the impugned order is not in accordance with law. We set aside the same and hold that the appellants are entitled for the benefit of these two notifications in respect of the goods which are covered by the licence and not with respect to the goods which are found in excess.”
(emphasis supplied)
11. As per this order, the appellant became entitled to the benefit of exemption under Notification No. 159 of 1990 or in the alternative under Notification No. 204 of 1992.
12. The Tribunal declined to follow this judgment of the Tribunal, Bench at Madras holding as under:
“9. With respect, it appears to us that significant issues which would have a bearing upon the availability of Notification No. 204/92 were not urged before the Madras Bench and thus not considered by it. Doubtless, the importer could lay a claim on the benefit of notification, before it was in force when the bill of entry was filed. However, Notification No. 204/92 is not a successor to Notification No. 159/90. It continues to be in force after 1992, when Notification No. 204/92 was promulgated. The two notifications ran side by side. There are also differences in the nature of the two notifications. We have noted the condition contained in Notification No. 159/90 with regard to goods permitted to be imported only of identical characteristics or specifications as used in the exported product. This condition is not present in Notification No. 204/92. Transferability of goods in Notification No. 204/92 is subject to less stringent condition as of Notification No. 159/90. Another factor which the Commissioner relied upon that the DEEC book itself mentions that one of the conditions in the notification that the goods must be covered by a DEEC book specified in the schedule to the notification. The schedule specifies the number of the notification. All these lead us to conclude that there are significant differences in the two notifications. While each of them serve the general purpose of export promotion, the manner in which they are worded and administered differs significantly. The arguments of the departmental representative before the Madras Bench, recorded in para 6 of its order do not refer to any of these considerations. We are quite satisfied if these points had been urged, a very different result might have arisen. We are therefore unable with respect, to treat that decision as binding. For the reasons it will also be clear that it is not possible to extend the benefit of Notification No. 204/92.”
13. Instead of referring the matter to a larger Bench in order to maintain the judicial propriety in decision-making, the Tribunal took it upon itself to disagree with the aforesaid decision in Jayant R. Patel (1997) 89 ELT 164 (Cegat) in refusing to follow the same.
14. This Court in Jayaswals Neco Ltd. v. CCE (2007) 13 SCC 807, (2006) 195 ELT 142 (SC) in the similar circumstances, held that in order to maintain the judicial propriety in decision-making, the Tribunal wherever it differs with the decision of the Coordinate Bench should refer the matter to a larger Bench. It was observed:
“10. Assuming even if it were to disagree with the test laid down in Hindustan Gas & Industries case (1996) 88 ELT 413 (Cegat) in order to maintain the judicial propriety in decision making, the Tribunal ought to have referred the matter to a larger Bench, which it did not do. If a Bench of coordinate jurisdiction does not agree with a Bench of the same strength, then it should refer the matter to a larger Bench and refrain from taking upon itself not to follow such decision and take a contra view. This inevitably leads to uncertainty and creates confusion. This practice must be deprecated at all costs.”
15. Against the judgment in Jayant R. Patel (1997) 89 ELT 164 (Cegat) the Revenue had filed appeal in this Court along with an application for condonation of delay under Section 5 of the Limitation Act, 1963 to condone the delay in filing the appeal. The appeal was dismissed on the ground of delay.
16. The said decision in Jayant R. Patel (1997) 89 ELT 164 (Cegat) of the Madras Bench of the Tribunal was followed in Commr. of Customs v. Salem Stainless Steel (2001) 131 ELT 30 (Mad) against which the Revenue did not file any appeal in this Court. Similarly, the decisions taken by different Benches of the Tribunal on the same lines as the Madras Bench of the Tribunal in Jayant R. Patel (1997) 89 ELT 164 (Cegat), Commr. of Customs v. Alfa Exim (1997) 95 ELT 366 (Cegat), Commr. of Customs v. Aditya International (P) Ltd. (2001) 135 ELT 667 (Cegat) and Jay Engg. Works Ltd. v. Commr. of Customs (2003) 162 ELT 680 (Cegat) were not appealed against by the Revenue.
17. Since the Customs Department has accepted the above judgments and the same has become final, the Revenue is precluded from taking a different stand in the present appeals as per law laid down by this Court in a catena of cases. See CCE v. Tata Engg. & Locomotives Co. Ltd. (2003) 11 SCC 193, Berger Paints India Ltd. v. CIT (2004) 12 SCC 42, Birla Corpn. Ltd. v. CCE (2005) 6 SCC 95, (2005) 186 ELT 266 and Jayaswals Neco Ltd. v. CCE (2007) 13 SCC 807, (2006) 195 ELT 142 (SC).
18. For the reasons stated above, we accept this appeal, set aside the order of the Tribunal with consequential reliefs and hold that the appellant assessee is entitled to the benefit of Exemption Notifications Nos. 159/90-Cus. and 204/92-Cus. Parties shall bear their own costs.