2016 (9) TMI 566 - AT - Customs

Served From India Scheme Scrip (SFIS) - wrong availing of benefit of exemption Notification No. 91/09-Cus dated 11.09.2009 - assorted wines, liquors, beers etc - assessment of bills of entry - Held that - the goods imported by the licence holder and in the circumstance, on merit the appellant has not contravened the provisions of Notification No.91/09-Cus dated 11.09.2009 as the goods were not be transferred or sold. Also, the bills of entry has been assessed and there is no allegation against the appellant of mis-declaration or mis-classification or suppression of facts, therefore without challenging the bills of entry, the proceedings are not sustainable. The assessment of bill of entry has not been challenged by the Revenue, therefore, the said assessment of bills of entry are final. Therefore, without challenging the same, the show cause notice issued to the appellant is not sustainable. Decision as given in the case Karan Associates vs. CC, Mumbai 2009 (2) TMI 20 - BOMBAY HIGH COURT has been followed. Invocation of extended period of limitation - malafide intention to evade payment of duty - Held that - malafide intention of the assessee has not been established. In the show cause notice it was merely alleged that the appellant has taken the benefit of Notification No.91/09-Cus dated 11.09.2009 wrongly - extended period of limitation is not invokable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against confirmation of demand for customs duty for specific periods.

Analysis:

1. Issue of Wrongly Availing Benefit of Notification: The appellant, a private bonded warehouse, imported and cleared various goods by incorrectly using a notification, debiting Served From India Scheme Scrip (SFIS) not in their name but in the name of third-party service providers. A show cause notice was issued to demand duty, confiscate goods, and impose penalties.

2. Contention of Appellant: The appellant argued that they filed the bill of entry in the name of SFIS holders who consumed the goods and complied with conditions. They claimed no mis-declaration was found during assessment, citing legal precedents to support their position.

3. Opposition by Revenue: The Revenue contended that the appellant wrongly availed the notification, leading to suppression of facts, justifying the issuance of the show cause notice and the duty payment, confiscation, and penalties.

4. Tribunal's Decision: After considering arguments, the Tribunal found that the appellant filed bills of entry correctly, showing SFIS holders, and that no mis-declaration or suppression occurred. Referring to legal precedents, the Tribunal held that without challenging the bill of entry, the proceedings against the appellant were not sustainable.

5. Validity of Show Cause Notice: The Tribunal noted that the show cause notice invoked an extended period without alleging willful suppression or malafide intent to evade duty, making the notice invalid.

6. Final Decision: Consequently, the Tribunal found no merit in the impugned orders, setting them aside and allowing the appeals with any consequential relief.

7. Observations from Previous Cases: The Tribunal referenced previous cases to support its decision, emphasizing the importance of challenging bill of entry assessments and limitations on the power to condone delays in appeals.

8. Conclusion: The judgment favored the appellant, emphasizing the importance of correct filing procedures and the necessity to challenge assessments to maintain the validity of show cause notices.