Page 208 - ELT_1st July 2020_Vol 373_Part 1

118 EXCISE LAW TIMES [ Vol. 373

4.3 From the perusal of the above Gazetted Notification it is clear that
the reply is in respect of Notification No. 120/2003-Cus., dated 1-8-2003, GSR
622(E), Serial No. 365 and bearing GI No. 2195, dated 1-8-2003. With the above
documents it is clear that the Notification No. 120/2003-Cus., though issued on
1-8-2003 and published on 1-8-2003 but offered for sale only on 4-8-2003. There-
fore, the same came into effect on 4-8-2003, whereas the Bills of Entry were filed
on 1-8-2003 therefore, the benefit of unamended Notification No. 21/2002-Cus.,
dated 1st March, 2002 was available to the appellant. The Adjudicating Authority
as well as the First Appellate Authority have decided the matter solely on the
basis of Hon’ble Supreme Court judgment in the case of Ganesh Das Bhojraj (su-
pra).
5. On careful reading of the said judgment, we find that the said judg-
ment is not in reference of amended Section 25(4)(a)(b) of Customs Act, 1962. We
observe that despite pointing out this legal position to both the Lower Authori-
ties they have brushed aside even the judgment of Karnataka High Court in the
case of M/s. Param Industries Ltd. which has considered the judgment of Ganesh
Das Bhojraj, therefore, both the Lower Authorities have not followed the judicial
discipline. The decision of Karnataka High Court was subsequently upheld by
the Hon’ble Supreme Court as cited (supra). On the identical issue the jurisdic-
tional Gujarat High Court in the case of M/s. M.D. Overseas Ltd. also taken the
same view as was taken by the Karnataka High Court and Supreme Court in the
case of M/s. Param Industries Ltd. This judgment of M/s. M.D. Overseas Ltd. was
also upheld by the Hon’ble Supreme Court.
6. In view of the above discussed facts coupled with the settled legal
position in the judgment of M/s. Param Industries Ltd. (supra) and M/s. M.D. Over-
seas Ltd. (supra), the impugned order is not sustainable hence, the same is set
aside, appeal is allowed.
(Pronounced in the open Court 10-2-2020)
_______

2020 (373) E.L.T. 118 (Tri. - Kolkata)
IN THE CESTAT, EASTERN BENCH, KOLKATA
[COURT NO. II]

S/Shri P.K. Choudhary, Member (J) and P.V. Subba Rao, Member (T)
COMMISSIONER OF CUSTOMS (PORT), KOLKATA
Versus
NARSINGH ISPAT LIMITED

Final Order No. 76649/KOL/2019 and Misc. Order No. 77516/2019, dated 25-11-
2019 in Application No. C/Misc/75601/2018 (Stay) in Appeal No. C/76283/2018
Cess - Clean energy cess - Not chargeable on goods falling under
Heading 2704 of Customs Tariff Act, 1975 - That it was self-assessment which
included cess or that provisional assessment had been sought only for purpose
of ship demurrage charges not to matter - Appellate order allowing assessee’s
appeal setting aside finalisation of six bills of entry and ordering re-

EXCISE LAW TIMES  1st July 2020  208