2018 (8) TMI 1602 - AT - Customs

Import of Cement - High Seas Sale - Benefit of N/N. 4/2006-CE dated 01.03.2006 - case of Department is that appellants are not eligible for duty exemption since they have not purchased the goods directly from the actual manufacturer - Held that - Very same issue decided in the case of DIAMOND SHIPPING AGENCIES (P) LTD. 2018 (4) TMI 1191 - CESTAT CHENNAI , where it was held that there is no merit in the impugned orders denying CV duty concession wherever available to the importer-appellants of such conditions - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Eligibility for duty exemption on imported cement bags on high seas sales basis
- Actual user condition for the imported cement

Eligibility for Duty Exemption:
The case involved the appellants importing cement bags on high seas sales basis, leading the department to argue that duty exemption was not applicable as the goods were not purchased directly from the actual manufacturer, as per Notification No. 4/2006-CE. The Tribunal noted that a similar issue had been addressed in a previous decision where it was emphasized that the assessing officer had the opportunity to verify the actual user condition post-importation. The Tribunal highlighted that if there were doubts, provisional assessment should have been conducted to confirm actual use. Since no such action was taken, and no evidence of misuse was presented, the Tribunal found that the appellants' claim for concessional duty based on actual use could not be questioned later without evidence. The Tribunal concluded that the impugned orders denying duty concession were without merit, setting them aside and allowing the appeals with consequential reliefs as per law.

Actual User Condition for Imported Cement:
The Tribunal reiterated the importance of the actual user condition for imported cement, noting that the appellants consistently claimed fulfillment of this condition. Despite the post-importation nature of this condition, the assessments were finalized accepting the appellants' claim. The Tribunal pointed out that if there were doubts about actual use fulfillment, provisional assessment should have been conducted, which was not done in this case. The Tribunal emphasized that the Revenue could only initiate demand proceedings for differential duty by denying the exemption upon uncovering evidence of misuse, which was not presented in this case. The Tribunal found that the appellants had not been asked to establish actual user in a specific manner at the time of assessment and clearances, and no evidence of selling the imported product to others was provided. Therefore, the Tribunal concluded that the appellants' eligibility for duty concession could not be questioned later without evidence, setting aside the impugned orders and allowing the appeals with consequential benefits as per law.