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2024 (8) TMI 1352 - AT - CustomsPayment of anti-subsidy/ Countervailing Duty (CVD) imposed on the import of stainless steel coils and plates from China under Section 9 of the Customs Tariff Act, 1975 - amendment of the shipping bills under Section 149 of the Customs Act, 1962 - permission for procedural relaxation under Drawback Rules, 2007. Whether import of stainless steel coils and plates from China in eight impugned B/Es all dated 12.10.2017 are liable for payment of Countervailing Duty (CVD) imposed under Section 9 of the Customs Tariff Act, 1975 or whether such imports under Advance Authorization Licenses are eligible for CVD exemption vide Notification No.18/2015-Customs dated 01.04.2015, as amended, vide Notification No.79/2017-Customs dated 13.10.2017? - HELD THAT - Section 9 of the Customs Tariff Act, 1975, clearly demonstrate that the Central Government has power to impose a specific Countervailing duty (CVD) not exceeding the amount of subsidy bestowed upon the manufacture or production therein or the exportation therefrom of any article including any subsidy on transportation of such article, when such subsidized article is imported into India. Accordingly, Notification No. 01/2017-Customs (CVD) dated 07.09.2017issued by the Central Government had imposed CVD on import of Flat rolled products of stainless steel, whether hot rolled or cold rolled of all grades/series; whether or not in plates, sheets, or in coil form or in any shape, of any width, of thickness 1.2 mm to 10.5 mm in case of hot rolled coils; 3 mm to 105 mm in case of hot rolled plates sheets; and up to 6.75 mm in case of cold rolled flat products falling under CTH 7219 or 7220. Therefore, it could be concluded that there was a levy of CVD in force in terms of the said notification dated 07.09.2017. However, such levy was exempted only after the issuance of Notification No.79/2017-Customs dated 13.10.2017. In terms of Section 159A ibid which provide that the effect of amendment do not revive anything that was not in force or existing at the time at which the amendment takes effect, we are of the considered view that import of stainless steel coils and plates from China in eight impugned B/Es all dated 12.10.2017 are liable for payment of Countervailing Duty (CVD) imposed under Section 9 of the Customs Tariff Act, 1975. To this extent the impugned order dated 01.11.2019, passed by learned Commissioner of Customs in confirmation of the demand of CVD duty is legally sustainable. Whether confiscation of imported goods covered in eight impugned B/Es under Section 111(d) of the Customs Act, 1962 and imposition of penalty on the appellant company under Section 114A ibid; penalties on S/Shri Hemant Bohra and Vimal Bohra, Directors of the appellant company under Sections 112(a) and 114AA ibid in the impugned order dated 01.11.2019 is sustainable? - HELD THAT - From plain reading of the legal provisions under Section 112(a) of the Customs Act, 1962, it is clear that a penalty is imposed, if it established that in relation to goods which are liable to confiscation under Section 111 ibid, and that such penalty is liable to be imposed on any person . It is not the case that in the factual matrix of the present case, that the impugned imported goods were imported by the appellants involving any prohibition imposed under Customs Act, 1962 or any other Act. In fact, the appellants importer have given the specific Advance Licenses on which they had claimed exemption from the levy of CVD, and the departmental authorities at the Customs port of importation had also permitted such impugned imported goods to be cleared without payment of such CVD approving of such act by the appellants - it is clearly proved that there is no trace of any element of violation of Section 111(d) ibid and hence the imposition of penalty under Section 112(a) ibid is without any evidence or grounds and hence to this extent the impugned order is not legally sustainable. In respect of penalty imposable under Section 114AA ibid is concerned, the legal provisions clearly provide that such penalty is imposed if a person is knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular - The penalty provision introduced by the Government under Section 114AA has been proposed considering the serious frauds being committed as that no goods are being exported, but papers are being created for availing the number of benefits under various export promotion schemes as has been held in the case of SURESH KUMAR AGGARWAL VERSUS COMMISSIONER OF CUSTOMS -III, RAIGAD, MAHARASHTRA 2024 (6) TMI 779 - CESTAT MUMBAI . Therefore, the imposition of penalty under Section 114AA ibid is without any evidence or grounds and hence the impugned order is not legally sustainable in this aspect also. Duty drawback claim - HELD THAT - The case of the appellants for claim of drawback in respect of the CVD suffered cannot be rejected as was decided in the case of appellants by the Commissioner of Customs, Nhava Sheva-II in the impugned letter dated 19.04.2022. Further, the aforesaid instructions issued by CBEC and DGFT specifically provide for accepting the claim for drawback and allowing the exporters/importers to file the documents with the jurisdictional customs authorities. As the appellants have submitted complete details with respect to the B/Es and Shipping Bills relevant to their claims for drawback along with supporting documents, there is no ground for denying the same under Rule 13 (1) (a) of the Customs and Central Excise Duties Drawback Rules, 2017 - the application for claim of drawback submitted by the appellants is eligible to be considered under Customs and Central Excise Duties Drawback Rules, 2017. Rejection of the request for amendment of shipping bills under Section 149 of the Customs Act, 1962, on the ground that there is delay of more than five months in filing the application - HELD THAT - The legal provisions do not prescribe any specific time limit and the time limit prescribed under Circular No.36/2010-Customs dated 23.09.2010 has been struck down by a number of judgements of Hon ble High Courts and Hon ble Supreme Court - The Hon ble High Court of Madras has held in the case of M/S. ANGEL OVERSEAS CORPORATION VERSUS UNION OF INDIA, DEPUTY COMMISSIONER OF CUSTOMS 2018 (7) TMI 1019 - MADRAS HIGH COURT that the object being that the exporter should be entitled to drawback, the delay in filing claim filed for drawback should be entertained by condoning the delay. The Hon ble High Court of Ahmedabad has held in the case of MESSRS MAHALAXMI RUBTECH LTD. VERSUS UNION OF INDIA 2021 (3) TMI 240 - GUJARAT HIGH COURT that the time limit of the submission of the request for conversion of shipping bills from one scheme to another within three months form the date of Let Export Order is held as ultra vires to Section 149 of the Customs Act, 1962. The impugned order dated 01.11.2019 passed by learned Commissioner of Customs, NS-III, JNCH, Nhava Sheva to the extent it has confirmed the confiscation of impugned goods under Section 111(d) of the Customs Act, 1962 and imposed penalty on the appellant company under Section 114A ibid and also imposed penalties on S/Shri Hemant Bohra and Vimal Bohra, Directors of the appellant company under Sections 112(a) and 114AA ibid is not legally sustainable and the same is set aside. However, there are no reason to interfere with the confirmation of Countervailing Duty (CVD) imposed under Section 9 of the Customs Tariff Act, 1975 in the impugned order and the same is upheld. Denial of grant of permission for giving exemption from compliance of Rule 13(1)(a) ibid in terms of the proviso appended to such Rule - denial of amendment of shipping bills sought by the appellants under Section 149 ibid read with earlier letter dated 21.02.2022 - HELD THAT - The impugned letter dated 19.04.2022 is set aside and the jurisdictional Commissioner of Customs is directed to examine the application filed by the appellants and provide necessary relief in grant of drawback benefits as per law. The impugned order is set aside - appeal allowed.
Issues Involved:
1. Liability for payment of Countervailing Duty (CVD) on imported stainless steel coils and plates from China. 2. Confiscation of imported goods and imposition of penalties under Sections 111(d), 112(a), and 114AA of the Customs Act, 1962. 3. Denial of exemption from compliance with Rule 13(1)(a) of the Drawback Rules, 2017, and amendment of shipping bills under Section 149 of the Customs Act, 1962. Detailed Analysis: 1. Liability for Payment of Countervailing Duty (CVD): The Tribunal examined whether the import of stainless steel coils and plates from China on 12.10.2017 was liable for CVD under Section 9 of the Customs Tariff Act, 1975. The goods were imported under Advance Authorization Licenses, and the appellants claimed exemption based on Notification No.18/2015-Customs. However, the exemption for CVD was introduced only on 13.10.2017 via Notification No.79/2017-Customs. The Tribunal concluded that the exemption could not be applied retrospectively, and the imports were liable for CVD as the notification providing exemption came into effect after the import date. Thus, the confirmation of CVD demand by the Commissioner of Customs was upheld. 2. Confiscation and Penalties: The Tribunal reviewed the confiscation of goods under Section 111(d) and the imposition of penalties under Sections 112(a) and 114AA of the Customs Act. The Commissioner of Customs had found that the appellants suppressed facts and did not pay the applicable CVD, justifying confiscation and penalties. However, the Tribunal noted that the appellants had a bona fide belief that CVD was not payable under Advance Licenses and had made several representations to authorities seeking clarification. The Tribunal found no evidence of collusion, willful misstatement, or suppression of facts by the appellants. Consequently, the penalties under Sections 112(a) and 114AA were deemed unsustainable and were set aside. 3. Denial of Exemption and Amendment of Shipping Bills: The Tribunal addressed the denial of exemption from compliance with Rule 13(1)(a) of the Drawback Rules and the amendment of shipping bills under Section 149. The Commissioner of Customs had rejected the appellants' requests, citing procedural non-compliance and time-barred applications. The Tribunal found that the legal provisions did not prescribe a specific time limit for such amendments and that the time limit introduced by Circular No.36/2010-Customs had been struck down by various court judgments. The Tribunal referenced several High Court and Supreme Court judgments that supported the appellants' position. The Tribunal concluded that the denial of the appellants' requests was inconsistent with legal provisions and directed the jurisdictional Commissioner of Customs to examine the application for drawback benefits as per law. Conclusion: The Tribunal upheld the confirmation of CVD demand but set aside the confiscation of goods and imposition of penalties. It also directed the jurisdictional Commissioner to reconsider the appellants' application for drawback benefits and amendment of shipping bills. The appeals were allowed in favor of the appellants with consequential relief.
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