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2011 (6) TMI 587 - AT - CustomsClandestine clearance of duty free imported brass scrap/zinc scrap in DTA without payment of duty - Proprietor of the unit in his statement recorded on various dates admitted that they were importing mix brass scrap without payment of Customs duty and were clearing the same in local market against cash without raising any invoices and without payment of any duty - held that - appellants have not disputed the fact of clandestine clearance of duty free imported brass scrap/zinc scrap in DTA without payment of duty. As a consequence confirmation of Customs duty and Education Cess against them does not stand challenged by them. The only challenge is to the imposition of CVD on the ground that the mix brass scrap/mix zinc scrap imported by the appellant was not the brass scrap arising out of manufacturing activity and as such the same was not leviable to any Excise duty in India. If that be so the CVD cannot be confirmed against them. For the above proposition they have relied upon the Hon ble Supreme Court decision in the case of Hyderabad Industries (1999 (5) TMI 29 - SUPREME COURT OF INDIA) Having clarified that it is ratio of the law declared by Hon ble Supreme Court in the case of Hyderabad Industries which would be applicable we deem it fit to remand the matter to Commissioner for examining the nature of brass scrap/zinc scrap imported by the appellant and the consequential duty liability of CVD.
Issues Involved:
1. Confirmation of Customs duty and Education Cess. 2. Imposition of Countervailing Duty (CVD). 3. Imposition of penalty under Section 112 of Customs Act, 1962. 4. Confiscation of imported mix brass scrap and imposition of redemption fine. 5. Legal interpretation of the applicability of the Supreme Court judgments in the cases of Khandelwal Metal & Engineering Works and Hyderabad Industries. Issue-wise Detailed Analysis: 1. Confirmation of Customs Duty and Education Cess: The appellant, M/s. Ilesh Exports, a 100% EOU, was found to have engaged in the clandestine clearance of duty-free imported brass scrap/zinc scrap in the Domestic Tariff Area (DTA) without payment of duty. The demand for Customs duty and Education Cess was confirmed against them, and this aspect was not disputed by the appellants. The Tribunal noted that the appellants accepted the confirmation of Customs duty and Education Cess due to their admitted involvement in the clandestine activities. 2. Imposition of Countervailing Duty (CVD): The primary contention raised by the appellant was against the imposition of CVD on the imported mix brass scrap. The appellant argued that the imported scrap was not manufactured and hence, not subject to Excise duty, relying on the Supreme Court judgment in Hyderabad Industries v. UOI. The Tribunal examined the legal precedents and found that the Commissioner had incorrectly relied on the Khandelwal Metal & Engineering Works judgment, which had been overruled by the Hyderabad Industries judgment. The Tribunal emphasized that the levy of CVD should be based on whether the imported articles are subject to Excise duty if manufactured in India. The Tribunal remanded the matter to the Commissioner to determine the nature of the imported brass scrap and its liability for CVD based on the principles established in Hyderabad Industries. 3. Imposition of Penalty under Section 112 of Customs Act, 1962: The adjudicating authority had imposed a penalty of Rs. 1,77,78,162 on M/s. Ilesh Exports and Rs. 5 lakhs on Shri Amrutlal Veljibhai Chandaria under Rule 26 of Central Excise Rules, 2002. The Tribunal directed the Commissioner to reconsider the imposition of penalties based on the outcome of the remand proceedings concerning the leviability of CVD. 4. Confiscation of Imported Mix Brass Scrap and Imposition of Redemption Fine: The Commissioner had ordered the confiscation of the imported mix brass scrap, valued at Rs. 3,58,44,873 and Rs. 2,18,29,770, with an option to redeem the same on payment of redemption fines of Rs. 40 lakhs and Rs. 22 lakhs, respectively. The Tribunal did not specifically address the confiscation and redemption fines in detail but indicated that the overall duty liability, including penalties, would be reconsidered during the remand proceedings. 5. Legal Interpretation of the Applicability of Supreme Court Judgments: The Tribunal clarified that the decision in Hyderabad Industries overruled the earlier judgment in Khandelwal Metal & Engineering Works regarding the levy of additional duty on non-manufactured articles. The Tribunal emphasized that the correct legal position, as established in Hyderabad Industries, should be applied to determine the liability of CVD on the imported mix brass scrap. The Tribunal directed the Commissioner to re-examine the facts and apply the correct legal principles to ascertain the nature of the imported scrap and its duty liability. Conclusion: The Tribunal set aside the impugned order and remanded the matter to the Commissioner for a fresh decision on the leviability of CVD, considering the legal principles established in the Hyderabad Industries judgment. The Tribunal also directed the Commissioner to reconsider the imposition of penalties based on the outcome of the remand proceedings. The confirmation of Customs duty and Education Cess was not contested and remained upheld.
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