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TMI Blog2025 (1) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... rely applicable to the facts of the present case more so for the reason that the said order has not yet been set aside by Hon ble Supreme Court. The reliance was also placed on Notification no. 79 of 2017 dated 13.10.2017 which extends exemption from the whole of IGST on the import of capital goods. The Hon ble Gujarat High Court has allowed the refund of IGST to the petitioner even if paid on the capital goods imported under EPCG scheme during the period 1.07.2017to 12.10.2017. Hence the IGST paid @5% is rather refundable to the assessee-respondent and there is no short payment of duty. The demand was wrongly confirmed by original adjudicating authority. The respondent mentioned in their cross objection, that they have strong case on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent was listed for Premise BasedAudit vide DGARM letter no. 229/2018RMCC/5665 dated 1.2.2019. Accordingly, the appellant was required to provide details of import and export from all ports for the period w.e.f. 1.4.2015 to September 2019. From the documents received, the respondent was observed to have filed a Bill of Entry dated 7.9.2017 for import of goods declared as Single Jersery Circular Knitting Machine, Model MV 4-3.2(ii) with declared assessable value of Rs. 8134035/- classifying them under CTH 84471219 of CustomsTarrif Act, 1975 The respondent declared IGST @ 12% taking benefit of entry at serial no. 230 of schedule-I of IGST notification no. 01 dated 28.06.2017. department formed an opinion that the goods imported were k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven to appear and to make submissions. In light of the clarification, in the order dated 21.08.2024 the respondent assessee was proceeded against ex-parte. Arguments on behalf of department, through Sh. Girjesh Kumar, Authorised representative (AR), heard. 5. Ld. AR submitted that the Commissioner (Appeals) has relied upon such decision i.e. in case of M/s Prince Spintex Pvt. Ltd. vs. Union of India reported in 2020 (35) GSTL 261 (Guj), which was already challenged by the department before Hon ble Supreme Court of India vide SLP (C) no. 012936/2020. It got registered in November,2021 i.e. much prior the impunged OIA dated 20.07.2022. It is submitted that Commissioner (Appeals) ought to have refrained from relyingupon such decision. It is fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from the whole of IGST on the import of capital goods. The Hon ble Gujarat High Court has allowed the refund of IGST to the petitioner even if paid on the capital goods imported under EPCG scheme during the period 1.07.2017to 12.10.2017. Hence the IGST paid @5% is rather refundable to the assessee-respondent and there is no short payment of duty. The demand was wrongly confirmed by original adjudicating authority. The respondent mentioned in their cross objection, that they have strong case on merits in their favour. Commissioner (Appeals) has also given the findings on merit in para 8 and 8.1 of the impunged Order in Appeal. It is also been mentioned in the cross objection that the incorrect serial no. of IGST notification (serial no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserve that the show cause notice is silent about bill of Entry to have been filed under EPCG scheme floated under Foreign Trade Policy as an incentive scheme. The respondent also did not make any submission to this effect along with the applicability of notification no. 79 of 2017, at the stage of investigation. The plea was taken before the original adjudicating authority. However, has not been considered for being beyond the show cause notice and also for the reason that the respondent had never approached the department to rectify the clerical mistake about entry no. 230 of notification no. 1 dated 28.06.2017 and about not mentioning the benefit notification no. 79 of 2017 dated 13.10.2017. The Commissioner (Appeals) has reversed those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to differ from the findings arrived at by the original adjudicating authority while confirming the demand of amount of short paid duty and the order of imposing penalty under section 114 A of Custom Act 1962. The imported goods are rightly held liable for confiscation under section 111 (m) of Custom Act 1962. The goods, however were not available for confiscation. Hence original order of not imposing any redemption fine on the respondent-importer is also justified. With these observations we hereby set aside the order in appeal being contrary to legal and justified findings. Consequent thereto the appeal filed by the department is hereby allowed and Cross application filed by the respondent is accordingly, disposed of. [ Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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