2024 (3) TMI 1189 - AT - Customs

Short payment of Countervailing Duty (CVD) - evasion of Customs Duty - import of Motor Spirit falling under CTFI 2710, by not declaring that a substantial portion of such imported Motor Spirit was not intended for sale without a brand name - benefit of Sl.No. 70(i) of N/N. 12/2012-CE dated 17.03.2012 (as amended) - HELD THAT - The Hon ble High Court of Bombay in the case of COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI VERSUS MAHESH INDIA 2006 (7) TMI 306 - BOMBAY HIGH COURT while considering the main issue as to whether the Show Cause Notice dated 22.03.1993 issued by DRI under Section 28 read with Section 124 of the Customs Act, 1962 is valid and proper had observed that the assessment being only provisional, the Show Cause Notice is not maintainable. It was held that the Show Cause Notice issued under Section 28 when the goods have not been finally assessed is bad in law and not maintainable. The Hon ble High Court of Calcutta in the case of JAJU PETRO CHEMICAL PVT. LTD. ANOTHER VERSUS THE COMMISSIONER OF CUSTOMS (PORT) OTHERS 2017 (7) TMI 633 - CALCUTTA HIGH COURT , considered the issue with regard to the demand raised under Section 28 of the Customs Act, 1962 when the assessment was only provisional. It was observed that when the duty to be paid is yet to be finalised the importer cannot be saddled with the guilt of not paying the duty or short paying the duty. In the present case, the Show Cause Notice is issued under Section 18 read with Section 124 of the Customs Act, 1962. There is no invocation of Section 28 for recovery of short paid duty. However there is proposal for recovery of differential CVD. There is no requirement for issuing a Show Cause Notice under Section 18 for finalisation of assessment. At the time of finalisation, the Department is free to look into all factors and finalise the Bills of Entry. The Show Cause Notice has been issued invoking Section 18 and 124 proposing to confiscate the goods, proposing to recover the differential duty and for imposing redemption fine and penalties. The appellant has added the additives to make the Petrol branded after filing the ex-bond Bill of Entry. During such process of branding by adding additives, the goods are not in shore tanks and are outside the Customs area. Taking all these aspects in to consideration, it is not found that the appellant had any malafide intention to evade Customs duty by availing concessional rate of duty. It is not established by the Department that the appellant had estimated the quantity that is to be sold as branded at the time of import itself - the order of confiscation of the goods and the imposition of redemption fine and penalties set aside, without disturbing the finalisation of the assessment and confirmation of higher CVD as paid along with interest by the appellant and appropriate by Department. The impugned order is modified to the extent of setting aside the confiscation of goods and imposition of redemption fine and penalties imposed under Section 112 (a) of the Customs Act, 1962 - appeal allowed in part.

Summary

Issues Involved:
1. Validity of Show Cause Notice issued by DRI.
2. Provisional vs. Final Assessment.
3. Mis-declaration and violation of Notification conditions.
4. Confiscation of goods, imposition of redemption fine, and penalties.

Summary:

1. Validity of Show Cause Notice issued by DRI:
The appellant did not contest the validity of the Show Cause Notice issued by DRI in this appeal. An affidavit was filed to this effect and taken on record.

2. Provisional vs. Final Assessment:
The appellant argued that the assessment was provisional and not finalized, making the confiscation, redemption fine, and penalties unsustainable. The Tribunal referred to several judgments, including *AS Syndicate (Warehousing) P. Ltd. Vs. Commissioner of Customs (Port)* and *Commissioner of Customs (Import) Vs. Mahesh India*, which held that a Show Cause Notice under Section 28 of the Customs Act, 1962 is not maintainable when the assessment is provisional. The Tribunal agreed with these precedents, stating that the Show Cause Notice issued under Section 18 read with Section 124 for provisional assessment is without jurisdiction.

3. Mis-declaration and violation of Notification conditions:
The appellant contended that at the time of import, the goods were intended for sale without a brand name, fulfilling the conditions of Notification No. 12/2012-CE dated 17.03.2012. They argued that due to the nature of the goods, it was not possible to estimate the quantity to be sold as branded at the time of import. The Tribunal noted the difficulties faced by Oil Marketing Companies as highlighted in Circular No. 1085/06/2022-CX dated 31.10.2022 and found no malafide intention on the appellant's part to evade duty.

4. Confiscation of goods, imposition of redemption fine, and penalties:
The Tribunal held that the order for confiscation of goods, imposition of redemption fine, and penalties under Section 112(a) of the Customs Act, 1962 was unsustainable. The appellant's payment of higher CVD and the absence of malafide intention were key factors. Consequently, the Tribunal set aside the order of confiscation, redemption fine, and penalties while upholding the finalization of assessment and confirmation of higher CVD along with interest.

Conclusion:
The appeal was partly allowed, setting aside the confiscation of goods and imposition of redemption fine and penalties, while maintaining the finalization of assessment and confirmation of higher CVD.