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TMI Blog2025 (2) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s V.V. Minerals between January 2009 to February 2012 imported Portland cement from manufacturer at Pakistan through Tuticorin port. The transactions were by High Sea Sales. Out of 33 bills of entry, the importer M/s V.V.Minerals availed concession rate of Counterveiling (CVD) under clause IC of the Notification No: 04/2006 C.E. Dated 01/03/2006 as amended and for 10 Bills of Entry, they availed concession rate of duty under Claus IA (ii) of the said Notification. 3. Under the Notification No:04/2006 the importer of cement is eligible for concession rate of duty on complying the following conditions:- a) The concessional rate of duty under Clause 1A(i) is available to the Cement whose Retail Sale Price does not exceed Rs. 190/- per 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 50 kgs retail packing and not in bulk as envisaged in the concession notification. Also admitted that they did not declare the purpose for which the cement was imported. This was again violation of the concession notification which says that the cement imported must be used for personal use of the importer and not to be sold. Further for concessional rate of duty the price of 50 kg bag must not exceed Rs. 190/-. Whereas it was found that the Respondent had paid more than Rs. 190/- for a bag of 50 kg. Neither, the cement was purchased directly from the manufacturer. 5. Therefore, Order-in-Original No:37/2014 dated 31.10.2014 was passed by the Adjudicating Authority under Section 28(4) of the Customs Act to pay the differential duty of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter three years, the department cannot open the case alleging duty concession wrongly bestowed. Relying on the judgement of the Supreme Court in Commissioner -vs- Sab Nife Power Systems Ltd ( 2002 (141) ELT A 95 (SC), it was contended that, there is no misdeclaration or suppression with intent to evade duty merely because the exemption claimed found to be inadmissible by Customs Authorities later. The CESTAT allowed the Appeal vide Common Final Order dated 31.01.2008 and set aside the order in original passed by the adjudicating authority as confirmed by the appellate authority. 8. Being aggrieved, the Customs Department had filed the C.M.A(MD)No.395 of 2019 raising the following question of law: - "Whether the CESTAT is correct in allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined and explained in Rule 2A (b) under Chapter II of Weights and Measures (Packaged Commodities) Amendment Rule, 2006 as under:- Explanation: - For the purpose of this rule, i) "Institutional consumer means" those consumers who buy packaged commodities directly from the manufactures/packers for service industry like transportation (including Airways, Railways), Hotel or any other similar service industry. ii) "Industrial consumer" means those consumers who buy packaged commodities directly from the manufacturers/packers for using the product in their industry for production, etc. 12. Based on the Bills of Entry and admission of the importer, the Adjudication Authority in his Order in Original dated 31.10.2014 as well as the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants. 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 fact was put at the time of assessment and clearances. The claim in the Bills of Entry at the time of import as well as in the written submissions made before the lower authorities by the appellant-importer categorically states about not selling the imported product to any other person. No evidence to that effect has also been brought by the Revenue. In such situation, the eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly from the manufacturer who had satisfied the conditions mentioned in the notification. In case of High Sea Sales (HSS), it is not the manufacturer who sell the goods contrarily, it is the Middleman or a Trader for commission who sell the goods. Likewise, clearance of goods by the Examiner of Customs Department will not be a ground to set aside the order of withdrawal of duty concession on the ground of mis-declaration if evasion is found subsequently. 14. The order of CESTAT by ignoring the admission of the importer that the cement imported through High Sea Sales was used for manufacturing Ash Bricks and sold in the local market had wrongly held that no such condition was put to the importer at the time of assessment and clearance. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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