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TMI Blog2019 (2) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 with effect from 08.04.2011. The new Section 17 of the Customs Act, 1962 which came to be introduced with effect from 08.04.2011 provided for self-assessment of duty on imported goods by the importer himself. As per the clarifications given in Board Circular No. 17/2011-Cus. dated 08.04.2011, the importer, at the time of self-assessment, will ensure that he declares the correct classification, applicable rate of duty, value of benefit of exemption Notification claimed, if any, in respect of the imported goods while presenting Bill of Entry. Time Limitation - Held that:- The SCN have been issued at least more than one year after the disputed imports. In the other cases, Show Cause Notices have been issued more than two years after the imports had been made. At the same time, we note that the Show Cause Notices have been issued on the premise that the differential duty is liable to be recovered under Section 28 of the Customs Act, 1962 for the extended period of five years - there is no cogent evidence that has been unearthed by the Department to corroborate the allegations that the importers have sold the imported cement at higher rates, in retail, etc - the Department has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From investigations carried out subsequently, it appeared to the Department that cement imported were in 50 kg bags. They were capable of being sold to other buyers also in the retail market. Hence, importers cannot claim any concession under Clause 1C of the said Notification in as much as they were neither industrial nor institutional consumers. Further, imported cement has not been sold to institutional or industrial consumers directly in bulk packings without MRP being marked on them, but in retail market to various other buyers at different MRPs which are more than ₹ 190 per 50 kg bag. Hence, concessional rate of duty under the other Clauses claimed are also not available. 2.3.1 Show Cause Notices were issued to the various appellants herein and accordingly, proceedings were initiated against the appellants herein. In the following two cases, the adjudication proceedings were conducted at the level of Commissioner, as under: Sl. No Name of importer Appeal No. Period SCN date Difference in duty (CVD) (in Rs.) Penalty imposed (in Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Shri. J. Davidson, Prop. (Kenstar Exim), Manufact--urer C/40686/2016 01/2009 to 12/2011 30.07.2013 15,09,822/- 15,09,822/- No RF imposed as goods not available for confiscation 1A(i) 1A(ii) 1C TR 7. M/s. Aathees Hard Floorings Govt. Contractor Manufacturer C/40691/2016 01/2009 to 12/2011 03.03.2014 2,34,217/- 2,34,217/- No RF imposed as goods not available for confiscation 1A(i) 1A(ii) 1C 8. M/s. PRP Export Manufacturer C/40716/2016 01/2009 to 12/2011 05.02.2014 29,63,881/- 29,63,881/- No RF imposed as goods not available for confiscation 1A(i) 1A(ii) 1C TR 9. M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination differentiates the sale of the goods by the importer to such users for the period prior to the said date as sale in the retail market within the meaning of the said term under the Standards of Weights and Measures (Packaged Commodity) Rules; (vii) In these cases, the goods were directly sold to the consumer by the appellant without any intermediary person. That being the case, the provision of Standards of Weights and Measures Act is not applicable. Consequently, the exemption under Clause 1C of Notification No. 04/2007-CE is held eligible in the CESTAT s Principal Bench in the case of M/s. Diamond Cement Vs. Commissioner of Central Excise, Bhopal reported in 2017 (325) E.L.T. 177 (Tri. Del.); (viii) The Hon ble Karnataka High Court in the case of EWAC Alloys Ltd. Vs. U.O.I. reported in 2012 (275) E.L.T. 193 (Kar.) distinguishing the judgement of the Bombay High Court and holding that requirement of Rule 6 of the Standards of Weights and Measures (Packaged Commodity) Rules is not required to be complied with by a manufacturer selling packaged goods to industrial/institutional consumers through stockist also supports the case of the appellants; (ix) It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33 (S.C.). (xiii) The Notification having not imposed any post-import condition also warrants the roving enquiry made by the authorities which also did not result in bringing on record any retail sale by the appellants or the RSP at which the imported cement was sold by them. These require the orders passed by the lower authorities to be set aside. (xiv) In the first place, the Orders passed by the Commissioner confiscating the goods without the same being seized or available with the Department or at least, a bond obtained from the importer for production, is totally bad in law; (xv) It is a fact on record that at the material time, there was no self-assessment and all the goods were assessed and out-of-charge Order in terms of Section 47 of the Act was given. This being the position, the issue of the notice for confiscation of the goods, is itself not maintainable without the Revenue reviewing the Order passed under Section 47 of the Act as has been held by the Tribunal in the case of M/s. D cor India approved by the Hon ble Supreme Court of India as reported in 1997 (94) E.L.T. A51 (S.C.); (xvi) At the time of importation, all the relevant documents and declarati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand made based on sale price of M/s. Antony Metals major sales have been made to institutional buyers on wholesale, admitted in or in Appeal. Benefit denied since importer is not an industrial consumer. Various rates assessed including tariff rate. 4. M/s. PSS Jayam Co. C/40713/2016 Demand made based on sale price of M/s. Antony Metals Benefit denied since importer is not an industrial consumer. No RSP less than ₹ 190/- declared. 5. M/s. Jawaharlal Co. C/40718/2016 Major sales have been made to institutional buyers Hollow Brick Manufacturer. RSP is less than the cost of import. Demand made based on sale price of M/s. Antony Metals. Benefit denied since importer is not an industrial consumer. 6. Shri. J. Davidson, Prop. (Kenstar Exim) C/40686/2016 Manufacturer of Hollow Blocks and cement consumed for their own use and not sold in retail. Demand made based on sale price of M/s. Antony Metals. Benefit denied and reason for rejection of RSP is that la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declarations made by the appellants claiming the said concession available to the actual user. In case of any doubt, due verification or follow-up should have been done by the officers; e) To set aside the approved assessment by the competent officers, contrary evidence of misuse of the concession post-importation should have been brought out by the Revenue. In the present case, there is no contrary evidence against the claim of the appellant of actual use. Hence, there can be no case of fraudulent mis-statement with intention to evade duty. No evidence to that effect at all is available. 4. On the other hand, Ld. AR Shri. A. Cletus appearing on behalf of the respondent reiterated the correctness of the impugned Orders. He also made submissions which can be broadly summarized as under : (i) When an importer seeks the benefit of exemption Notification, it must be seen whether he has fulfilled the requirements to be eligible for exemption. Conditions of Notification No. 04/2006 pertain to post clearance issues; (ii) Hence, the investigation conducted after assessment of clearance of the goods is very much in order; (iii) For the same reason, since the importers had m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported cement at higher rates, in retail, etc. This being so, we are afraid that the Department has not been able to establish ingredients like suppression, mis-statement of facts, etc., with incontrovertible evidence to justify invocation of extended period of limitation to initiate the impugned proceedings. 9.1 The proceedings have largely relied upon the statements of importers and some sale invoices. However, no evidence to connect the sale invoices with the impugned imports have been unearthed by the Department. In these circumstances, we hold that the proceedings in all these cases will certainly be hit by limitation. Further, we find that the very same issue has already been addressed by the Tribunal in the case of M/s. Diamond Cement Vs. Commissioner of Central Excise, Bhopal 2017 (352) E.L.T. 177 (Tri. Del.) on the matter of eligibility to concessional rate under serial number 1C of Notification No. 04/2007-CE. The relevant portion of the judgement is reproduced as under : 2 . The brief facts of the case are that the assessee-appellants are manufacturer of the cement. They are selling the cement to the agencies on MRP basis, but in some cases selling d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, we find that the ratio therein is applicable on all fours to the impugned disputes since it involves eligibility of CVD, which is equal to Central Excise Duty leviable. 10. So also, this very Bench in the case of M/s. Global Star Logistics Ors. Vs. Commissioner of Customs, Tuticorin in Final Order Nos. 40271-40292/2018 dated 31.01.2018 in respect of appellants who had claimed identical CVD concession in terms of serial number 1C of Notification No. 04/2006-CE dated 01.03.2006 as amended, held as under : 6. On the first issue we have perused the sample invoice and import documents. It is clear that Bills of Entry filed along with invoices contain details of goods imported. The exporters details with evidences linking up with high sea sale invoices further linked up with Bill of Entry. Hence, the import from the designated exporter who is declared as manufacturer of cement based on the details in the invoices cannot be disputed. No contrary evidence that purchase is from a trader has also been submitted by the Revenue. 7. Regarding the second issue of actual user condition for the imported cement, we note that the appellants all along claimed fulfilment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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