2023 (4) TMI 355 - AT - Customs

Scope of SCN - Denial of Benefit of exemption N/N. 88/94-Cus. dated 01.03.1994 - Non-production of end-use certificate from the jurisdictional Central Excise authorities - HELD THAT - On perusal of the impugned order, it is noticed by Commissioner (Appeals) that stay was granted waiving the requirement of pre-deposit, observing that the appellant was not served with the show cause notice and the order passed by the original authority. Further, in para-11, the Commissioner (Appeals) has set aside the order of confirmation but has upheld the show cause notice, which is found to be improper. On perusal of the order passed by the original authority, it is seen that a notice was issued under sub-section (1) of Section 28 of the Customs Act, 1962 demanding duty to the tune of Rs.49,062/- for the reason that the exemption is only for duty that is in excess of 30% and not 20%. However, it is seen that amount of Rs.2,20,777/- has been confirmed by the original authority on the ground that the appellant has not produced end-use certificate. Indeed, the said finding is beyond the scope of the SCN. On perusal of Notification No.89/1994, it is found that there is no such condition attached to the goods imported under List-C. The argument put forward by the Ld. Counsel alleging that the original authority has confirmed a higher amount on grounds which are not alleged in the SCN and has thus traversed beyond the SCN is not without substance. There is also no evidence available from the impugned order or from the records that SCN and the OIO have been served on the appellant. The said plea has been put forward by the appellant from the very beginning of the litigation. The demand cannot sustain and is set aside - appeal allowed.

Summary

Issues involved:
The issues involved in this case are the interpretation of Notification No.88/94-Cus. dated 01.03.1994, the demand notice for the differential amount between 30% and 20% duty, the requirement of end-use certificate from the jurisdictional Central Excise authorities, the service of show cause notice and order on the appellant, and the confirmation of duty by the original authority beyond the scope of the show cause notice.

Interpretation of Notification No.88/94-Cus. dated 01.03.1994:
The appellant imported 'Glass Neck Tubes' claiming benefit under this notification. The Customs Receipt Audit pointed out that the exemption was only for duty in excess of 30% and not 20% as assessed. The demand notice for the differential amount was issued, leading to a confirmation of duty by the adjudicating authority for not producing an end-use certificate from the Central Excise authorities. The Commissioner (Appeals) set aside the confirmation but upheld the demand notice. The appellant argued that the confirmation based on the end-use certificate condition was erroneous as no such condition was imposed in the notification. The Tribunal found that the demand cannot sustain as there was no condition attached to the goods imported under the notification.

Service of show cause notice and order on the appellant:
The appellant contended that they were not served with the demand notice or the order confirming the duty until the Revenue Recovery Unit initiated steps for recovery. The appellant received a copy of the order after a delay of 14 years, and it was served on their employee, not on them directly. The Tribunal noted that there was no evidence that the show cause notice and the order had been served on the appellant, which was raised as an issue from the beginning of the litigation. The Commissioner (Appeals) also observed a lack of evidence of proper service. The Tribunal found the lack of service to be a significant factor in setting aside the demand.

Confirmation of duty beyond the scope of the show cause notice:
The original authority issued a notice demanding duty for the difference between 30% and 20% as per the notification. However, the authority confirmed a higher duty alleging non-production of an end-use certificate, which was not part of the initial show cause notice. The Tribunal agreed with the appellant's argument that the confirmation of a higher amount based on grounds not alleged in the show cause notice was improper. The Tribunal held that the confirmation of duty beyond the scope of the show cause notice was a valid reason to set aside the demand.

Conclusion:
In conclusion, the Tribunal set aside the impugned order, allowing the appeal with consequential relief, if any, as the demand could not sustain due to the lack of conditions in the notification, improper service of the notice and order on the appellant, and the confirmation of duty beyond the scope of the show cause notice. The decision was pronounced in open court on 06.04.2023.