(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Department is in appeal against judgement of the Tribunal dated 12.11.2010 raising following questions for our consideration :
(a) Whether in the facts and circumstances of the case, transformation of the imported round logs into sawn timber in different sizes and length by the importer before subsequent sale to domestic market would vitiate the condition of subsequent sale prescribed in exemption notification No.102/2007-Customs dated 14.09.2007?
(b) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in deciding the issue in appeal by placing sole reliance on decision of Tribunal in case of Vijirom Chem Pvt. Ltd. v. Commr. of Cus., Bangalore reported in 2006(199) ELT 751(Tri.-Bang) and observing that the respondent is eligible to avail benefit under exemption notification No.102/2007-Customs dated 14.09.2007?
(c) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law by not considering the issue of interpretation of exemption notification by applying ratio laid down by the Apex Court in the case of Novopan India Ltd. v. CCE & Cus., Hyderabad reported in 1994(73) ELT 769(SC)?
(d) Whether the impugned order of the Tribunal,which is passed without referring to and giving its finding on all submissions and precedents pointed out by learned Departmental Representative at the time of hearing of the appeal, can be said to be passed in accordance with law?
Counsel for the Department candidly pointed out that issues arising in the present Tax Appeal are same as those considered by this Court in the group of Tax Appeal being Tax Appeal No.86/2011 and connected appeals. This Court dismissed the Department's appeal and confirmed the decision of Tribunal making following observations :
"32. From the above, it can be seen that though, at the time of import, the respondent brought into the country, raw logs or timber, and before selling it in the open market in India, cut them into smaller pieces by sawing, no new product, in our view, came into existence. Identity of the article did not undergo any fundamental change so as to conclude that what was imported by the respondents-importers was different from the item which ultimately was sold by them in the local market.
33. Second significant factor, which attracts our attention is that as stated by the counsel for the respondents, they were, under the law, obliged to reduce the length of the timber before its transport RTO authorities would not permit transportation of the timber which is longer than 40 Feet.
34. It is an undisputed position that the respondents imported the goods after paying SCVD. At the time of its sale in the local market, they also paid local taxes such as sales tax or the Value Added Tax as may be applicable. Before transportation of timber, they were required to reduce its size since the RTO rules did not permit transportation of logs longer that 40feet. If only for cutting length of logs,which were in excess of 40 feet, sawing operations were carried out and after some cleaning and scaring was done, timber logs of smaller pieces were sold, we do not see how respondents can be stated to have breached any of the conditions of the exemption notification dated 14.9.2007.
35. Under the circumstances, we do not find any error in the view of the Tribunal. Appeals are, therefore, dismissed.
36. In view of the dismissal of the main appeals, Civil Applications for stay do not survive and the same are also dismissed."
Issues being common, without separately recording reasons, present Tax Appeal is also dismissed.
Since Tax Appeal is dismissed, Civil application is also dismissed.
(Akil Kureshi,J.) (Ms.
Sonia Gokani,J.) (raghu)