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TMI Blog2025 (1) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... s authorities duly allowed the exemption, as claimed under the said notifications, and no C.V.D. was charged in the assessed bills of entry. The appellant has paid the duty according to the assessed bills of entry and cleared the said goods. >The appellant has been importing the said goods and declared the same as Rutile sand/Rutile even on earlier occasions. The Test reports attached to the earlier imports indicate that the same have 90% to 96% of Titanium Dioxide. Upon due examination, the appellant was allowed such exemption in respect of all their imports right from the year 2007 up to September 2012. Along with the bill of entry, the appellant always submitted copy of test certificate of the foreign supplier which mentioned the Titanium Dioxide content in the Rutile Sand as 95% and above. >The goods imported by the appellant in the years 2007 to 2010 has enclosed the Certificate of Analysis which shows the Titanium Di Oxide percentage ranging above 95%. The said goods were declared by the appellant-importer as Rutile sand/Rutile and the Customs authorities had duly allowed the exemption as claimed under the said notifications and no C.V.D. was charged in the assessed bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom payment of C. V. Duty under Notification No.4/2006-CE dated 01.03.2006 (serial no.4) and its successor Notification No.12/2012-CE dated 17.03.2012 (serial no.56) (hereinafter referred to "the said notifications"). The Customs authorities duly assessed the bills of entry and allowed the exemption as claimed under the said notifications and no C.V.D. was charged in the said assessed bills of entry. >2.1. On December 3, 2012, officers of the Directorate of Revenue Intelligence (DRI) searched the office and factory premises of the appellant and resumed certain incriminating documents. On completion of the investigation, a Show Cause Notice dated August 13, 2013 was issued in respect of four consignments of 442 Μ.Τ. of the said goods imported during the period from September 1, 2011 to September 30, 2012, wherein it was alleged that the appellant had mis-declared the goods as Rutile Sand/Rutile Ore instead of Titanium Dioxide (Rutile) Ore concentrate and wrongly availed the exemption under the said notifications. Accordingly, the notice proposed recovery of differential duty of Rs.67,54,786/- under sub-section (4) of section 28 of the Customs Act, along with inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing satisfied about the correctness of the appellant's claim, the Customs authorities duly assessed the bills of entry. It is submitted that the Customs authorities have duly allowed the exemption as claimed under the said notifications and no C.V.D. was charged in the assessed bills of entry; the appellant paid the duty according to the assessed bills of entry and cleared the said goods, which were thereafter used in the manufacture of its final products. >3.3. The appellant submits that the Ld. Commissioner was not justified in relying on the matter downloaded from the foreign supplier's web site. It is stated that if the Customs authorities had any doubt about the correctness of the claim of the appellant-company at the time of clearance of goods, they could have sent the goods for testing; rather, the instant proceedings were initiated on a mere change of opinion and the Department could not be permitted to demand differential duty merely on the basis of matter downloaded from the web site of the foreign supplier. >3.4. It is also contended that the Department has initiated the proceedings on the assumption as if the material imported by the appellant-company had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT Credit on the duty so paid in order to avoid litigation in a revenue neutral situation. Thus, the appellant submits that the Ld. Commissioner has failed to appreciate that the issue involved is entirely revenue neutral and that whatever duty had been demanded in the Show Cause Notice, if paid, the appellant would be entitled to take CENVAT Credit; there was no revenue implication in the present case. In such cases of revenue neutrality, the extended period of limitation cannot be invoked. >3.8. It has also been submitted by the appellant- company that they had been importing the said goods regularly as Rutile Sand/ Rutile since 2007, much prior to introduction of self assessment procedure in 2011, and no objection was ever raised by the Department and therefore the question of mis-declaration did not arise as alleged in the findings of the Commissioner. >3.9. Thus, the appellant-company contends that the demands confirmed in the impugned is not sustainable on merits as well as on the ground of limitation. >3.10. It is also submitted that there is no mis-declaration or suppression of fact established on the part of the appellants in the present case and thus, the penalti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of mis-declaration is unsustainable. Thus, we observe that the appellants have contested the demands confirmed in the impugned order on merits as well as on the ground of limitation. >6.2. We observe that the appellant-company had been importing the said goods by declaring the same as Rutile Sand/Rutile all along in the Bills of Entry filed by them. At the time of importation, they have submitted all the necessary documents, such as, invoices, packing lists, test certificates, certificates of origin, bills of lading, marine insurance, etc. The said goods were thereafter examined by the Customs authorities and after being satisfied about the correctness of the appellant's claim, the Customs authorities duly assessed the bills of entry. The Customs authorities duly allowed the exemption, as claimed under the said notifications, and no C.V.D. was charged in the assessed bills of entry. The appellant has paid the duty according to the assessed bills of entry and cleared the said goods. >6.3. It is also observed that the appellant on earlier occasions also purchased such Rutile Sand/Titanium Ore containing about 90% to 96% Titanium Dioxide. We find that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in September, 2012 are as follows: - >"First Import of September 2012 >• Assessed bill of entry dated 19.9.2012 for "Rutile (Titanium 92.2%)" page 137 of Paper Book >• Test certificate for "Rutile 92, 2 To bag, MB" Titanium Dioxide 92.2% - page 138 of Paper Book >• Commercial invoice for "Rutile 92, 2 To bag, MB" - 139 of Paper Book Second import of 2012 >• Assessed bill of entry dated 19.9.2012 for "Rutile (Premium) (Titanium 95.8%)" - page 144 of Paper Book >• Test certificate for "Rutile, Premium, 2 to bag, MB" Titanium Dioxide 95.8% - page 145 of Paper Book >• Commercial invoice for "Rutile, Premium, 2 to bag, MB" - page 146 of Paper Book" >6.6. Thus, we find that the appellant-importer has been importing the said goods and always declared the same as Rutile Sand/Rutile on earlier occasions. The Test report attached to the earlier imports showed the presence of 90% to 96% of Titanium di oxide. We also find that upon due examination, the appellant was allowed such exemption in respect of its imports right from 2007 up to September 2012. Along with the bills of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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