2023 (12) TMI 756 - AT - Customs

Confiscation of the goods alongwith the vehicle - Clearance of goods from Noida SEZ - demand of duty on the goods allegedly manufactured and clandestinely cleared to DTA by the appellant without paying the excise duty - benefit of notifications for CVD and SAD. Exemption notifications applicable to CVD - HELD THAT - Entry at S.No. 171 exempts ornaments and like articles whether or not set with stones or gems or pearls which leaves no manner of doubt that diamond studded jewellery was clearly exempted under the notification. For these reasons, it is found that the appellant was entitled to the exemption from additional duty of Customs (CVD) under Notification no. 6/2002-CE (S.No. 171) which provides full and unconditional exemption - the case is found in favour of the appellant insofar as the exemption from CVD is concerned. Exemption notifications applicable to SAD - benefit of exemption notification No 6/2004-Cus dated 08.01.2004 - HELD THAT - The appellant cannot claim the benefit of a notification applying Section 9A(5) of the Central Excise Rules, 1944 which was not even in existence at the time of the SCN and had already been superseded in 2001 and further in 2002. The appellant claimed that the date of removal was not known in the case and therefore, the benefit of the exemption notification available on the date of the SCN should be extended to it. While it is true that the exact date of removal of goods was not known, they are alleged to have been removed from 7.9.2000 and 4.10.2002. Undisputedly, the exemption notification no. 6/2004-Cus was not available during this entire period. Therefore, the appellant is not entitled to the benefit of the exemption notification not available during any of the dates of the clearance - the issue is found in favour of the Revenue and against the appellant and hold that the benefit of exemption notification no. 6/2004-Cus was not available to the appellant on the SAD to be paid. Entries in the work in progress (WIP) register - HELD THAT - It is not found that in the first round of litigation, this Tribunal remanded the matter for the limited purpose of deciding the claims with respect to CVD, SAD and the entries in the WIP register - it is also found that it is true that the demand in this case was not based only on the WIP register but this register was used as supporting evidence only. The demand was based on the entries in the two notebooks Priya and Rishu and the some other entries and there was no separate demand on the basis of the WIP register. WIP register was only used as supporting evidence. The claim of the appellant with respect to some entries (known as contra entries by the appellant) were required to be examined by the Commissioner which he did in the impugned order. Personal penalty imposed on Shri Anand Shrivastava - HELD THAT - Since there was no specific direction with respect to the penalty imposed on Shri Shrivastava by the Tribunal in the Final Order remanding the matter to the original authority, evidently, the only reason his appeal was also remanded was that the demand itself was being remanded. If the demand is dropped naturally the penalties would also need to be dropped. However, the appellants (including Shri Shrivastava) were also given the liberty to submit additional documents before the Commissioner in the de novo proceedings. The ground of appeal of Shri Shrivastava in this appeal is not new nor has it brought in any additional documents. This ground was taken in the original proceedings as well as in the de novo proceedings before the Commissioner. In the original proceedings, this plea was rejected by the original authority and such rejection was not interfered with in the Final Order of this Tribunal while remanding the matter. The ground taken by Shri Shrivastava that, although he was the promoter of the Global Diamonds, he was not concerned with the day-to-day affairs during the relevant period was rejected by the original authority in the original proceedings and such rejection was not interfered with by this Tribunal while remanding the matter for the limited purposes indicated. There is nothing on record to show that the order of the Tribunal was either appealed against or any application for rectification seeking modification of the order was filed by either side. The demand in the impugned order is upheld except giving the benefit of Notification No. 6/2002-CE dated 1.3.2002 (S.No. 171) for CVD - there are no reason to interfere with the penalty - appeal allowed in part.

Summary

Issues Involved:
1. Exemption notifications applicable to CVD.
2. Exemption notifications applicable to SAD.
3. Entries in the work in progress (WIP) register.
4. Personal penalty imposed on Shri Anand Srivastava.

Summary:

Exemption notifications applicable to CVD:

The Tribunal examined whether the appellant was entitled to the benefit of exemption notification no. 6/2002-CE dated 1.3.2002 (S.No. 171) for CVD. The Principal Commissioner had denied this benefit, erroneously considering entry no. 44A which the appellant did not claim. The Tribunal found that the exemption under S.No. 171, which includes "ornaments and the like articles" whether or not set with stones or gems, clearly covers diamond-studded jewellery. Therefore, the appellant was entitled to the exemption from additional duty of Customs (CVD) under Notification no. 6/2002-CE (S.No. 171).

Exemption notifications applicable to SAD:

The appellant claimed the benefit of exemption notification No 6/2004-Cus dated 08.01.2004. However, the Tribunal held that the appellant cannot claim the benefit of a notification applying Section 9A(5) of the Central Excise Rules, 1944, which was not in existence at the time of the SCN and had been superseded. Since the goods were removed between 7.9.2000 and 4.10.2002, and the exemption notification no. 6/2004-Cus was not available during this period, the appellant was not entitled to the benefit of this exemption notification for SAD.

Entries in the work in progress (WIP) register:

The appellant argued that some diamonds received were rejected and returned, and thus, the demand must be reduced. The Tribunal found that the demand was based on entries in two notebooks and other documents, with the WIP register used as supporting evidence. The Commissioner found no documentary evidence supporting the claim that 501.407 carats of diamonds were returned. The Tribunal upheld the Commissioner's view, finding insufficient evidence to believe the diamonds were returned.

Personal penalty imposed on Shri Anand Srivastava:

Shri Anand Srivastava challenged the personal penalty imposed on him, claiming a violation of principles of natural justice. The Tribunal noted that his role was addressed in the original proceedings and the penalty was imposed under Rule 26 of the Central Excise Rules, 2002. The Tribunal found no new grounds or additional documents in the de novo proceedings and upheld the penalty, noting that the original rejection of his plea was not interfered with in the remand order.

Conclusion:

Customs Appeal No. 50642 of 2019 filed by M/s Global Diamond Pvt Ltd. is partly allowed, giving the benefit of Notification No. 6/2002-CE dated 1.3.2002 (S.No. 171) for CVD. Customs Appeal No. 50643 of 2019 filed by Anand Shrivastav (Promoter) is dismissed.