9911796707
TMI Blog1999 (9) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... oods to be redeemed on payment of fine of Rs 1 lac. Since the excess found declared was only 5% of the total, the learned Commissioner found that there was no mala fide involved and he has not imposed any penalty but released the goods on caution. He has however ordered that duty would have to be collected on the excess quantity noticed. 2. Heard Shri M.S. Kumaraswamy, learned Consultant who submits that the goods were declared on the Bill of Entry as per the documents received from the foreign exporter and was accordingly declared and assessed to duty at concessional rate under Notification 11/97 Sl. No. 103 for the said declared quantity. For this declared quantity, undertaking had been given for the end use as required by the said Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the said Notification for the entire quantity for which they sought exemption. The onus on this lies on the importer and not on the department. Having not done, the learned Commissioner has rightly observed in para 6 of the order in original impugned that since they have not executed any end use undertaking, the importer will have to pay duty on the excess quantity found. Accordingly, duty at tariff rate was collected and there is no illegality attached to this. He, therefore, submits that as far as assessment to duty is concerned, appellants have no legal ground. 4. We have carefully considered the rival submissions and records of the case. We find that it is not disputed that the excess quantity discovered during post assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We feel that since the materials imported were heavy melting scrap and since exemption under Notification 11/97 was therefore available to it, then it would be denial of substantive justice if exemption is denied merely on the ground that letter of undertaking for only 5% of the entire consignment was not given by the appellants in the background of this case. It is well settled that when the goods qualify for taking exemption available under the Notification, then the attendant procedural irregularity if any should be viewed leniently as discussed in the case of SKF Bearings Ltd v. CC, Bombay as reported in 1999 (109) E.L.T. 774 (Tribunal) - 1998 (28) RLT 504 (CEGAT), which is a decision after consideration of plethora of decisions on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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