2018 (4) TMI 1191 - AT - Customs

Liability of CVD - N/N. 4/2006-CE dt. 1.3.2006 as amended - Held that - Bills of Entry filed along with invoices contain details of goods imported. The exporters details with evidences linking up with high sea sale invoices further linked up with Bill of Entry. Hence, the import from the designated exporter who is declared as manufacturer of cement based on the details in the invoices cannot be disputed. No contrary evidence that purchase is from a trader has also been submitted by the Revenue. Concessional rate of duty - Actual user condition - the department entertaining a view that concession claimed and allowed under the said notification is not correct, initiated proceedings against all the importer-appellants/CHAs - Held that - Though same is post-importation, actual use based condition, the assessments were finalized accepting the claim of the appellant for such concessional duty. It would appear that officers had opportunity to satisfy themselves about the actual user condition. In case of possible doubt on such fulfilment, the requirement is to resort to provisional assessment and call for post-importation actual user confirmation. This was not done in the present case which will show that the assessing officer is satisfied with the claim made by the appellants - the eligibility to the CV duty concession as claimed by the appellant during the material time cannot be questioned much later without any evidence. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Common dispute on CV Duty liability of imported cement by various parties.
2. Appeals by importers and Custom House Agents (CHAs) against penalties.

Analysis:
1. The judgment pertains to 22 appeals involving a common dispute regarding the CV Duty liability of imported cement. The appeals are filed by importers and CHAs who processed the import documents. The importer-appellants imported Ordinary Port Land Cement Grade 43 and claimed CV duty concession under Notification No.4/2006-CE. The department later initiated proceedings against the importers and CHAs, alleging that the concessions were wrongly extended. The lower authorities upheld the Revenue's view, confirming differential duty and imposing penalties on CHAs.

2. The arguments presented by the appellants focused on various key points. They highlighted that the imports were made from the actual manufacturer in Pakistan through high sea sales. The cement was used for construction activities by the importers themselves, as declared from the date of import. The assessments were finalized without raising any questions regarding the concession claimed. The demand was also contested on the grounds of limitation and lack of contrary evidence against the claim of actual use.

3. The Commissioner argued that the concession claimed is subject to specific conditions, such as being bought from the actual manufacturer for actual use. The Revenue can demand differential duty based on satisfactory evidence even after the assessments are finalized. The demand proceedings were deemed lawful, and the claim of limitation was refuted.

4. Upon reviewing the appeal records, the Tribunal found that the import details were properly documented, linking the goods to the designated exporter who was declared as the manufacturer. The invoices and import documents supported the import from the manufacturer, and no evidence of purchase from a trader was presented by the Revenue.

5. Regarding the actual user condition, the Tribunal noted that the appellants consistently claimed fulfillment of this condition post-importation. The assessments were finalized accepting this claim, indicating that the assessing officers were satisfied. The Revenue failed to provide evidence of misuse of the end-use condition, and the eligibility for CV duty concession could not be questioned without substantial evidence.

6. The Tribunal concluded that the impugned orders denying CV duty concession were without merit, and all appeals were allowed with consequential reliefs. Additionally, the penalties imposed on CHAs were deemed unsustainable as no intentional action to abet a violation was demonstrated. Therefore, the penalties on CHAs were set aside, and all appeals were allowed.