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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 ..... of the manufacturer will become redundant. To avail concession rate of duty, it should be purchased directly 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. The end use of the cement imported is one of the condition for granting concession rate of duty as per Clause IC. In fact the importer has to file a end use declaration at the time of clearance and any violation of the declaration will come to knowledge of the Revenue obviously only after the misuse of the goods imported for a purpose other than for which it was allowed to be imported at concession rate. In this case, the records reveals that, by way of show cause notice, the department had sought for explanation about the Post- Importation actual user confirmation. The importer has admitted that the cement imported was used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 tonnes per annum and the total clearances of cement produced by the factory in a financial year shall not exceed 3,00,000 tonnes. d) The concessional rate of CVD under Clause IC is eligible for cement whether or not manufactured in a mini cement plant, not covered in Sl.No.IB of the Notification No.4/2006 dated 01.03.2006 other than those cleared in packaged form ie., in bulk. 4. Alleging that the import of the cement under these Bills of Entry was in violation of the eligible conditions mentioned in the Notification, show cause notice was issued to explain why action not be taken for availing duty concession wrongly. The Manager of M/s V.V.Minerals participated in the adjudication and gave a statement admitting import of cement bags 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved, 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 allowing the benefit of concessional rate of Counter Veiling Duty (CVD) on the imports wherein the importers have failed to fulfill the conditions stipulated in the Notification No.4/2006-CE as amended and also when such imports by the importers are in contrary to the conditions stipulated in the Notification No.4/2006-CE as amended?" 9. According to the Customs Department, the import of cement by M/s V.V. Minerals was in violation of the Notification terms. The violations are admitted by the company in its reply to show cause notice and the statement of its representative. The delay in initiating action cannot be a reason for exonerating the violator. The explanation by the company for the term institutional/industrial purpose is not in tune with the spirit of the Notification. 10. The specific case of the Department is that, the company by misdeclaration availed duty concession in the following manner :- a) The import of cement was not from the manufacturer directly. It was through High Sea Sales (HSS). b) The purchase was not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 to the CV duty concession as claimed by the appellant during the material time cannot be questioned much later without any evidence. 13. In the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of the declaration will come to knowledge of the Revenue obviously only after the misuse of the goods imported for a purpose other than for which it was allowed to be imported at concession rate. In this case, the records reveals that, by way of show cause notice, the department had sought for explanation about the Post- Importation actual user confirmation. The importer has admitted that the cement imported was used for manufacturing Ash brick and sold in the local market. Therefore, it is evident that the cement was not used for institutional/industrial purposes. 15. The CESTAT order which is apparently against the terms of the notification and the evidence by way of Bills of Entry and Statement of importer, is liable to be set aside. By passing a common order without considering the facts of the individual cases and the evidence in the form of admission, renders the order in appeal perverse. The CESTAT erred in allowing the benefit of concessional rate of counter veiling Duty (CVD) to the respondent M/s V.V.Minerals despite gross violation of the concession condition. Hence the question of law is answered in negative favouring the Department. 16. In the result, C.M. ..... 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