2019 (3) TMI 889 - AT - Customs

Levy of export cess on Mica Products - Section 28 (1) of the Customs Act, 1962 - Held that - Admittedly, in the Shipping Bills filed by the Respondents and self assessed under Section 17 of the Customs Act, the export cess has not been levied or paid. There is no dispute on this fact. The Revenue has issued the Show Cause Notices in these cases for demand of cess within a period of five years from the dates of export by invoking the proviso to Section 28 by alleging suppression etc. on the part of the exporters. A perusal of the Show Cause Notices reveal that the only reason cited for alleging suppression and willful mis-statement is the exporters, on self assessed shipping bills, did not pay the export cess. The act of not paying the cess which was otherwise payable, has been cited by Revenue to allege suppression of the part of the exporters - This alone cannot constitute proper justification for invoking extended period under Section 28. Perusal of the Order passed by the Commissioner (Appeals) reveals that he has taken a similar view - Appeal dismissed - decided against Revenue.

Summary

Issues:
Appeals filed by Revenue against Orders-in-Appeal for non-payment of export cess on Mica Products.

Analysis:
The case involved five appeals filed by Revenue against Orders-in-Appeal passed by the Commissioner (Appeals), Kolkata, regarding the non-payment of export cess on Mica Products. The exporters had exported Mica Products through Air Cargo Complex, Kolkata, and the issue revolved around the non-payment of cess leviable on such exports. The Department issued Show Cause Notices to the exporters within the five-year period from the date of export, alleging non-payment of cess due to collusion or willful misstatement. The Original Adjudicating Authority upheld the demand for payment of export cess, but the Commissioner of Customs (Appeals) set aside the demands through separate Orders-in-Appeal, stating that the demand was not sustainable.

The Revenue contended that the Show Cause Notices were not time-barred as the exporters were aware of the liability to pay the cess on Mica Products and had paid the cess for similar exports from the sea port. It was argued that the exporters willfully suppressed the fact of non-payment of export cess. On the other hand, the Respondents supported the Commissioner (Appeals) orders, stating that the Show Cause Notice was rightly held to be time-barred. The Commissioner (Appeals) had referred to various case laws to justify not invoking the extended time limit, as the Show Cause Notice did not provide grounds for doing so.

Upon hearing both sides and reviewing the appeal record, the Tribunal found that the exporters had indeed not paid the export cess on Mica Products as required. However, the Tribunal held that mere non-payment of the cess, without additional evidence of suppression, was not sufficient to justify invoking the extended period under Section 28. The Commissioner (Appeals) had also taken a similar view, citing case laws that required more than just non-payment of tax to establish suppression. As no additional evidence was presented by Revenue to prove suppression, the Tribunal upheld the Orders passed by the Lower Authority, rejecting all appeals filed by Revenue.