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TMI Blog2019 (6) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT CHENNAI] where it was held in favor of importers on the ground of limitation. Also in the case the case of M/s. Diamond Cement Vs. Commissioner of Central Excise, Bhopal [2017 (1) TMI 1476 - CESTAT NEW DELHI] was relied upon where on the matter of eligibility to concessional rate under serial number 1C of Notification No. 04/2007-CE. has held that the sale to the individual without any intermediary person is entitled for concessional rate of duty. The demand, interest or the penalty cannot survive both on merits as well as on limitation - Appeal allowed - decided in favor of appellant. - Customs Miscellaneous Application No.40143, 40144/2019, Customs Appeal No.40967/2015, 40714/2016 - Final Order No. 40637-40638/2019 - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have claimed benefits under different clauses of the notification. SCNs were issued to the appellants proposing to deny benefit of the notification and also for demanding the enhanced duty along with interest and for imposing fine and penalties. After due process of law, the original authority confirmed the demand, interest as well as imposed penalties. Against this, appellants approached Commissioner (Appeals) who confirmed the order passed by the original authority. Hence these appeals. 3. On behalf of the appellants, the Ld. Counsel Shri A.K. Jayaraj submitted that the facts and issues are similar to that of the cases decided by the Tribunal vide Final Order No.40271-40292/2018 dt. 31.01.2018 and also Final Order No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earance for home consumption. At this stage, we find merit in one of the contentions of the Ld. Counsel that the concept of self-assessment of Customs Duty inter alia in respect of imported goods by the importer came into effect only by the Finance Act, 2011 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 respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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 directly to the consumers which includes the Government agencies, builders, institutions and individuals. When the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it was not meant for resale, then the concessional rate of duty can be availed by the assessee-appellants, especially when the cement packages were cleared without marketing of RSP and with an endorsement of not for resale . 6. Thus, in view of the above, the sale to the individual without any intermediary person is entitled for concessional rate of duty and is covered by the above-mentioned decision of this Tribunal. 7. Following the ratio of the aforesaid decision, we set aside the impugned order and allow the appeal filed by the assessee-appellants with consequential relief. 8. In the result, the appeal filed by the assessee-appellants is allowed and the cross-appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duty. It would appear that officers had opportunity to satisfy themselves about the actual user condition. In case of possible doubt on such fulfilment, the requirement is to resort to provisional assessment and call for post-importation actual user confirmation. This was not done in the present case which will show that the assessing officer is satisfied with the claim made by the appellants. The Revenue can initiate demand proceedings of differential duty by denying the exemption later, only upon unearthing the evidences of misuse of such end-use condition. Such evidences have not been brought before us. The impugned orders observe that the appellants failed to establish actual user. No such condition regarding manner establishing such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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