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TMI Blog2024 (7) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... dure prescribed under Rule 5 of the Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017. They have executed the required bond as per these Rules. 1.3 On scrutiny of the records of the appellant by the officers of the Customs Division, Madurai, it was noted that the appellant has cleared certain goods into DTA during the period from 07/2017 to 12/2018 without payment of Basic Customs Duty and Cess thereof. 1.4 The appellant vide Letter dated 08.02.2019 admitted about the non-payment of Customs Duty in respect of the inputs used in the manufacture of finished / semi-finished goods cleared into DTA and gave an undertaking that they would pay the customs duty on a weekly basis and complete their liability. The statement from Manager of the Company, Shri T. Soundarapandian was also recorded. The appellant made payment of Rs.2,51,00,000/- by instalments from 13.02.2019 to 17.06.2019 accordingly. However, the entire duty was not paid. 1.5 As per the conditions of paragraph 6.08 of the Foreign Trade Policy (2015-2020) read with Notification No. 52/2003-Cus dated 31.03.2003 as amended by Notification No. 59/2017-Cus dated 30.06.2017, the appellant is liable to pay customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of goods that were cleared into DTA for the period from 07/2017 to 12/2018 along with interest and also for imposing penalties. Show Cause Notice proposed to appropriate the amount already paid by the appellant. After due process of law, the Original Authority vide Order impugned herein confirmed the demand as proposed in the Show Cause Notice along with interest and imposed penalty of Rs.3 Lakhs under Section 117 of the Customs Act, 1962. The amount already paid by the appellant to the tune of Rs.2,51,00,000/- was ordered to be appropriated. Aggrieved by such order, the appellant is now before the Tribunal. 2.1 The Ld. Counsel Shri S. Muthuvenkataraman appeared and argued for the appellant. It is submitted that the allegation raised by the Department is that the appellant has violated the conditions in Notification No. 52/2003-Cus dated 31.03.2003 in as much the appellant had cleared the products into DTA without payment of customs duty. It is submitted that the proceedings initiated for the recovery of the duty cannot legally sustain for the reason that the Department has not challenged the assessments / decisions passed by the officer while permitting the appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had requested to issue permission to take credit of the duty amount vide the above Letter. After import of goods on fulfilment of condition, the appellant used to submit the calculation of the duty amount which has been foregone and on fulfilment of export appellant was allowed to take credit of the duty. This means that the duty debited has been allowed to be forgone in favour of assessee. Pursuant to Letter dated 12.10.2018, the Assistant Commissioner had issued Letter dated 17.10.2018 granting permission to take credit of the duty amount in the running bond. It is submitted that before permitting the appellant to take credit of duty amount in the running bond, the Assistant Commissioner has examined the records and documents. Such permission granted is quasi-judicial decision and made after application of mind towards fulfilment of statutory requirements / conditions for eligibility to the exemption in the Notification. While such Letters of permission to take recredit in bond were given in recent imports, earlier the practice followed was to make debit in bond registered on importation and subsequent recredit after re-warehousing and fulfilment of export obligation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to amendment dated 01.07.2017 cannot be made in terms of paragraph 3 of the Notification. Prior to the amendment, there was no provision to demand customs duty on inputs used for manufacture of finished product cleared into DTA. Only excise duty was required to be paid on clearances as per the Notification No. 23/2003-CE. The appellant had already discharged excise duty on clearance into DTA. Therefore, the present proceeding initiated for demand of customs duty for the Bills of Entry presented prior to 01.07.2017 is not tenable. 2.9 The Ld. Counsel submitted that the impugned order notes that the appellant has paid an amount of Rs.2,51,00,000/- during the investigation and the same has been appropriated towards the duty demanded as per the Show Cause Notice. The amount appropriated as per the impugned order is not legally correct. The amount actually paid by the appellant is Rs.2,66,00,000/- out of which an amount of Rs.2,17,00,000/- is related to the present Show Cause Notice for the period from 07/2017 to 12/2018 and the balance amount of Rs.49,000/- is related to the period from January, 2019. It is submitted that the same requires to be verified and rectified. 2.10 The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duties of Customs under First Schedule to the Customs Tariff Act, 1975 which has been availed as exemption. This reversal of Customs duty would be as per prevailing SION norms or norms fixed by the Norms Committee. It is submitted that the Letter allowing for credit in the Bond does not amount to assessment / self-assessment / assessment of duty by the proper officer in terms of statutory provisions. The contention of the appellant that the Letter giving permission to credit in the bond is to be considered as a quasi-judicial decision cannot be accepted. The recredit is allowed as per the worksheet furnished by the appellant and there is no application of mind. In case of non-fulfilment of conditions of the Notification, the appellant has to pay the applicable duty in terms of the Notification. Merely because the bond has been recredited, it cannot be said that the officer has examined whether the inputs have been used for exports / DTA sales fully. Such interpretation put forward by the appellant on the basis of the ITC judgment of Hon'ble Apex Court would make the situation chaotic and the provisions of the Customs Act redundant. If all such decision are accepted as assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appeal may be dismissed. 4. Heard both sides. 5.1 The foremost contention put forward by the appellant is that the Show Cause Notice issued is ab-initio-void for the reason that the permission granted by the Assistant Commissioner allowing to take recredit of the duty foregone at the time of import of inputs being an order of assessment ought to have been challenged by the Department. The Ld. Counsel has relied upon the decision of the Hon'ble Apex Court in the case of ITC Ltd. Vs. Commissioner of Central Excise, Kolkata-IV [2019 (368) ELT 216 (SC)]. For better appreciation of this issue, the relevant part of the decision of the Hon'ble Apex Court reads as under:- "20. Right to appeal is available to any person i.e. to the department as well as to importer/exporter against an order of self-assessment. Until and unless assessment order is modified and a fresh order of assessment is passed and duty redetermined, the refund cannot be granted by way of refund application. The refund authorities cannot take over the role of Assessing Officer. The officer considering refund claim cannot reassess an assessment order. An assessment order has to be questioned within the stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of the goods, classification, exemption or concession, speaking order shall be passed within 15 days from the date of assessment of the bill of entry or the shipping bill as the case may be as provided in Section 17(5). .... .... 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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