2019 (2) TMI 1258 - AT - Customs

Concessional rate of countervailing duty (CVD) - N/N. 04/2006-CE dated 01.03.2006 as amended - Import of Cement in 50 kg bags - denial of concession on the ground that they were neither industrial nor institutional consumers - whether the initiation of proceedings by the Revenue to deny the benefit of Notification No. 04/2006-CE will pass the test of law or not? Held that - What is not disputed is that in all these cases the Bills-of-Entry filed by the appellants herein, claiming various Clauses of Notification No. 04/2006-CE for concessional rate of CVD, were assessed and allowed clearance for home consumption. At this stage, there is no merit in one of the contentions of the Ld. Counsel that the concept of self-assessment of Customs Duty inter alia in respect of imported goods by the importer came into effect only by the Finance Act, 2011 with effect from 08.04.2011. The new Section 17 of the Customs Act, 1962 which came to be introduced with effect from 08.04.2011 provided for self-assessment of duty on imported goods by the importer himself. As per the clarifications given in Board Circular No. 17/2011-Cus. dated 08.04.2011, the importer, at the time of self-assessment, will ensure that he declares the correct classification, applicable rate of duty, value of benefit of exemption Notification claimed, if any, in respect of the imported goods while presenting Bill of Entry. Time Limitation - Held that - The SCN have been issued at least more than one year after the disputed imports. In the other cases, Show Cause Notices have been issued more than two years after the imports had been made. At the same time, we note that the Show Cause Notices have been issued on the premise that the differential duty is liable to be recovered under Section 28 of the Customs Act, 1962 for the extended period of five years - there is no cogent evidence that has been unearthed by the Department to corroborate the allegations that the importers have sold the imported cement at higher rates, in retail, etc - the Department has not been able to establish ingredients like suppression, mis-statement of facts, etc., with incontrovertible evidence to justify invocation of extended period of limitation to initiate the impugned proceedings. The very same issue has already been addressed by the Tribunal in the case of M/s. Diamond Cement Vs. Commissioner of Central Excise, Bhopal 2017 (1) TMI 1476 - CESTAT NEW DELHI on the matter of eligibility to concessional rate under serial number 1C of Notification No. 04/2007-CE. has held that the sale to the individual without any intermediary person is entitled for concessional rate of duty. The demands will not survive, both on limitation as well as on merits - It is seen that penalties have been imposed on the CHA alleging they have abetted in wrongly availing the benefit of exemption. Since the demands are set aside, the penalties on CHA also cannot sustain - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Eligibility for concessional rate of countervailing duty (CVD) under Notification No. 04/2006-CE.
2. Applicability of extended period of limitation for issuing Show Cause Notices.
3. Validity of penalties imposed on importers and Custom House Agents (CHA).

Detailed Analysis:

1. Eligibility for Concessional Rate of CVD:
The appellants imported cement from Pakistan and claimed concessional CVD rates under various clauses of Notification No. 04/2006-CE. The Department later contended that the cement was sold in retail markets, making the concessional rates inapplicable. The appellants argued that they either used the cement themselves or sold it to institutional or industrial consumers, not in retail. They cited judgments like M/s. Thermax Pvt. Ltd. and M/s. Hyderabad Industries to support their claim that importers should be treated on par with manufacturers for CVD purposes. The Tribunal found that the Department did not provide evidence of retail sales and upheld the appellants' claim for concessional rates, referencing the Tribunal’s decision in M/s. Diamond Cement and M/s. Global Star Logistics.

2. Applicability of Extended Period of Limitation:
The Show Cause Notices were issued more than one or two years after the imports, invoking the extended period of five years under Section 28 of the Customs Act, 1962. However, the Tribunal found no cogent evidence of suppression or mis-statement by the importers. The Department's reliance on sale invoices and importer statements without concrete evidence linking them to the impugned imports was insufficient. Therefore, the Tribunal held that the proceedings were time-barred and could not invoke the extended period of limitation.

3. Validity of Penalties Imposed:
Penalties were imposed on importers and CHAs for allegedly abetting the wrongful availing of exemption benefits. Since the Tribunal set aside the demands on both limitation and merits, it also held that the penalties could not sustain. The Tribunal emphasized that the assessments were finalized based on the importers' declarations and no contrary evidence of retail sales was presented by the Department.

Conclusion:
The Tribunal allowed the appeals, setting aside the impugned orders and penalties. It concluded that the demands did not survive due to lack of evidence and were time-barred. The appeals were pronounced in open court on 19.02.2019.