9911796707
TMI Blog2015 (1) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered some challans showing the clearance of white waste paper to the tune of 1197.700 MT from appellant No. 1 to their sister concern M/s. Shah Paper & Pulp Mills Ltd. (hereinafter referred to as SPPML) which was not accounted in the records. The appellant No. 2 and appellant No. 3 in their statements admitted that they had segregated 1275.210 MT of waste paper imported at concessional rate of Customs duty as per B/E wise details and had cleared the same to M/s. SPPML without paying any differential Customs duty payable thereon and without reversing the Cenvat credit availed by them on a part quantity of 842.08 MT out of the 1275.210 MT segregated waste thereby violating the conditions of Notification No. 21/2002-Cus., dated 1-3-2002 and the undertaking given in the form of Bond and that they were liable to pay the differential amount of Customs duty on 1275.201 MT of paper waste under Section 111(o), recovery of the differential Customs duty amounting to Rs. 10,34,744/- along with interest and imposition of penalty under Sections 114A and 112 of the Customs Act, 1962. After considering the submissions of the appellants, the adjudicating authority confiscated the goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Again aggrieved by the said Order-in-Appeal Nos. 103 to 105 (GR.IIB)/2011 Imp-77 to 79, dated 23-5-2012, the appellants preferred an appeal before the Hon'ble CESTAT, Mumbai Bench requesting to set aside the impugned Order-in-Appeals Nos. 103 to 105 (GR.IIB)/2011 Imp-77 to 79, dated 23-5-2012. The Hon'ble CESTAT vide its Order Nos. A/313-315/13CSTB/C-I, dated 12-2-2013 has remanded back the case with an observation as under :- "the Commissioner (Appeals) has entertained the appeal without waiving the requirement of pre-deposit as required under Section 129E of the Customs Act, 1962. Therefore, without passing the hurdle of Section 129E of the Customs Act, 1962, impugned order is bad in the eyes of law. Therefore, we set aside the impugned order". "Therefore, we stay the impugned demand remand the matter back to the Commissioner (Appeals) to decide the issue afresh on merits without insisting on the pre-deposit." On perusal of the aforesaid Order, dated 12-2-2013 of the Hon'ble CESTAT, it is observed that the matter has been remanded back to the Commissioner (Appeals) to decide the impugned issue afresh on merits without insisting on the pre-deposit. Accordingly, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med. 10. The Notification No. 21/2002-Cus., dated 1-3-2002 vide S. No. 152 provide exemption to goods of CTH 4707 in excess of rates mentioned therein as under : S. No. Chapter or Heading No. or sub-heading No. Description of goods Standard Rate Additional Duty rate Condition No. 152 4707 All goods imported for use in, or supply to, a unit of manufacture of paper or paperboard. 5% NIL 20 Condition No. 20 of Notification No. 21/2002-Cus., dated 1-3-2002 provides that - (a) the importer furnishes an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, that such imported goods will be used for the purpose specified and in the event of his failure to comply with this condition, he shall be liable to pay, in respect of such quantity of the said goods as is not proved to have been so used, an amount equal to the difference between the duty leviable on such quantity but for the exemption under this notification and that already paid at the time of importation; and (b) the importer produces to the said Deputy Commissioner or Assistant Commissioner, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, I find that issue in the present case is of exemption from Basic Customs Duty and not C.V.D. The intended purpose for availing exemption under said notification was that the imported goods should be used in, or supply to, either a unit of manufacture of paper or paperboard or manufacture of newsprint. The appellant is a manufacturer of Kraft Paper. They have utilized most of the imported 'Waste Paper' for their self-consumption in manufacturing of 'Kraft Paper'. Only 4 to 5 percentage of total quantity imported which was not useful to them for manufacturing of 'Kraft Paper' and was useful for manufacture of 'Newsprint' was cleared by them to SPPML, a manufacturer of 'Newsprint'. The notification itself provides that it can be supplied to other unit but for manufacture of paper or paperboard or manufacture of newsprint. Therefore, so far as intended purpose for which the exemption is provided is not violated in the present case. 14. The second part for availing exemption is to fulfil the condition No. 20 specified in the Annexure to the Notification No. 21/2002-Cus., dated 1-3-2002 as amended. The said Sr. No. 20 provides two conditions (a) and (b). These conditions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. After in-depth investigation they found that the appellant have not complied with the condition (b) referred above and also diverted the 1275.201 MT of segregated white waste paper to SPPML a newsprint manufacturer. It was not found in the investigation that SPPML has further diverted the 1275.201 MT of 'Waste Paper' received by them from the appellant. In other words, there is no allegation that SPPML has not manufactured newsprint from the 1275.201 MT of 'Waste Paper' received by them from the appellant. The appellant has submitted a certificate dated 9-4-2014 duly certified by Chartered Accountant; certifying that the impugned goods of 1275.210 MTS of waste paper was received by SPPML and consumed in the activity of making newsprint. The substantive condition of the notification is the specified use of the imported goods and to verify the compliance of this substantive condition procedural condition of Sr. No. 20(b) was specified. It is proved beyond doubt that the appellants have complied the substantive condition of the notification. The show cause notice of the present case itself stands as certificate in this regard. Therefore, exemption of the Basic Customs Duty prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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