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TMI Blog2017 (12) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... from the appellant's premises to the premises of M/s Super Deluxe Paper Mills Pvt. Ltd., as per version of the tempo driver. Recording evidence from various persons including the vehicle driver and Supervisor of M/s Super Deluxe Paper Mills Pvt Ltd., Revenue came to a conclusion that the waste paper imported by appellant for use in manufacture of Newsprint Paper consisted waste paper as well as Kraft paper. The segregated kraft paper from the imported consignment were sold to M/s Super Deluxe Paper Mills Pvt. Ltd., and others as mentioned in para 11 of the adjudication order as under:- (a) M/s. Aryan Paper Mills Pvt. Ltd., (b) M/s. Kwality Pulp & Paper Mills, (c) M/s. Shree Gajanan Paper & Boards Pvt. Ltd. (d) M/s. Ruby Macons Ltd., ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant being manufacturer of newsprint paper, Revenue further investigated into the reason whether the newsprint paper imported by appellant were actually used in the manufacture of newsprint or whether there was any violation to the condition of the Notification No. 21/2002-Cus dated 01.03.2002 amended from time to time. The relevant part of the notification reads as under:- S.No. Chapter or Heading No. or sub-heading No. Description of goods Standard rate Addi- Conditional duty Condition XXXXX XXXX XXXXXX XX XX XX 152(B) 4707 All goods imported for use in or supply to, a unit for manufacture of newsprint 5% Nil 20 21. If, - (a) the importer furnishes an undertaking to the Deputy Commissioner of Customs or the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- was confiscated with grant of option for redemption on payment of fine of Rs. 5,000/-. There was also a penalty in terms of section 114(a) of the Customs Act on the appellant for the escapement of levy of duty at the time of import in terms of Section 28(2) of the Customs Act, 1962. Added to this, there was a penalty of Rs. 5 lakhs on Shri Ashok H. Shah, Chairman & Managing Director of appellant under provisions of section 112(a) of the Customs Act, 1962. 7. On the aforesaid background, the appellants M/s Daman Ganga Papers Ltd., and Shri Ashok H. Shah came in appeal against the impugned order challenging the consequence thereof. 8. Shri V.S. Nankani, Sr. Advocate appearing on behalf of the appellant submitted that what was imported b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rint, relying on the decision of the Apex Court in the case of State of Haryana v. Dalmia Dadri Cement Ltd. (supra) "intended for use" was not to be given go by. The intention of the legislature was not to limit the exemption only to the goods used by the importer in manufacture, since the phraseology used in the exemption would have been confined to "actually used" or "goods used". But that is not so. 10. To the above proposition of the appellant, Revenue's contention is that there is no bar for the appellant to enjoy the exemption of any levy of additional duty and avail concessional rate of basic duty fulfilling condition of notification fulfilling condition of notification. The waste kraft paper not usable in manufacture of newsprint i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d should avail exemption. It may be stated that the goods not used and not usable but have benefitted the appellant making sale thereof shall deprive the exchequer to realize its dues forgone at the time of import. It is settled principle of law in the case of S.P. Chengalvaraya Naidu v. Jayarmath - 1994 (1) SCC 1 : AIR 1994 SC 853 that no one shall be allowed to retain any undue gain made at the cost of the State for his unjust enrichment. Plea of Revenue has force to entertain in so far as the levy of appropriate duty on that part of waste kraft paper sold out of sorting from the imported lot is concerned. Accordingly, basic customs duty, and additional customs duty as is prescribed by law shall be leviable. Central Excise duty if any pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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