M/S.Brintons Carpets Asia Pvt Ltd vs The Commissioner Of Central ...
2017 Latest Caselaw 6159 Bom

                                                                                              13-CEXA-191-15.doc

Sharayu.

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION 

                   CENTRAL EXCISE APPEAL NO. 191 OF 2015



      M/s. Brintons Carpets Asia Pvt.Ltd.                                                    ...Appellant

              Versus

      The Commissioner of Central Excise                                                     ...Respondent

                                                           ----------

      Mr. V. Shashidharan, a/w Mr. Prakash Shah & Mr. Jas Sanghavi,
      i/b PDS Legal, for the Appellant.

      Mr. M. Dwivedi, i/b Mr. Sham Walve, for the Respondent.


                                                           ----------


                                                            CORAM : ABHAY S. OKA AND
                                                                    RIYAZ  I. CHAGLA, JJ.

                                                            DATE     : 16 August 2017


      ORDER :

1. Heard the learned Senior Counsel appearing for the

Appellant and the learned Counsel appearing for the

Respondent. The Appeal is admitted on the following

13-CEXA-191-15.doc

substantive questions of law:-

a) Whether in the facts and circumstances of the case, the CESTAT was correct in demanding impugned duties from the Appellant particularly in view of para (x) of Letter of Undertaking executed by the customers in favour of Central Government in Appendix - 21A of Handbook of Procedures, 2002-2007?

b) Whether in the facts and circumstances of the case, the CESTAT was correct in concluding that there is breach of condition No. (i) of Notification No. 44/2002-Cus dated 19 April 2002 (and its successor Notification No. 55/2003-Cus dated 1 April 2003)?

c) Whether in the facts and circumstances of the case, the CESTAT erred in not deleting the demand of duty against the Appellant in the light of (a) installation certificate given by customers (page Nos. 350 to 362 of Customs paper book Volume III of paper book before CESTAT) and (b) Export obligation discharge certificates given by authorities of DGFT (page Nos. 363 to 372 of Customs paper book Volume III of paper book before CESTAT), both of which was duly filed by the Appellants the Respondent Commissioner/CESTAT?

d) Whether in the facts and circumstances of the case, doubt/finding of the CESTAT about use of impugned

13-CEXA-191-15.doc

capital goods by customer for discharge of export obligation is perverse particularly in the light of Export Obligation Discharge Certificates issued by licensing authority and also particularly when this is not even an allegation in any of the show cause notices?

e) Whether in the facts and circumstances of the case, the finding of CESTAT about not producing the licence for debit is not a ground in any of the show cause notices (except show cause notice dated 10 September 2009) and hence bad in law?

f) Whether in the facts and circumstances of the case, the finding of CESTAT about not producing the licence for debit is perverse in legal sense of term in view of specific averment/denial by the Appellant in the reply to the show cause notices and intimation letters/documents filed by the Appellant with the Excise Department from time to time (page 653 to 727 of Part IV paper book before this Court) (page 493 to 568 of Customs paper book Volume IV before CESTAT)?

g) Whether in the facts and circumstances of the case, the CESTAT was correct in demanding excise duties particularly when the situation is entirely revenue neutral as the amount is otherwise refundable as terminal excise duty under para 8.3(c) of Foreign Trade Policy and since a refund under provisions of Foreign Trade Policy is not subject to fulfillment of conditions of the Notification Nos.

13-CEXA-191-15.doc

44/02-Cus or 55/03-Cus or any such similar stipulation/conditions?

2. Advocate on record for the Respondent waives

service.

[RIYAZ I. CHAGLA J.] [ABHAY S. OKA, J.]