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TMI Blog2025 (3) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... e from a non-manufacturer/trader. No doubt, the Bill of Entry contains details of the manufacturer, but that is not sufficient to claim concessional rate of duty. The concessional rule not only specifically mandates that the purchase must be from the manufacturer directly, it also specifies the mode of manufacturing and the capacity of the manufacturer. If the reasoning given by the CESTAT to be accepted, then the condition in Clause IB in the Notification which imposes condition about the mode of manufacturing and capacity of the manufacturer will become redundant. 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 Hollow bricks and sold to its customers. Therefore, it is evident that the cement was not used for institutional/industrial purposes. Hence, 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. Conclusion - The CESTAT erred in allowing the benefit of concessional r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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. During the investigation conducted subsequently, the following violation of the notification by misdeclaration was found:- (i) the Respondent had imported Cement in 50 Kg bags with RSP declared as Rs. 190/- and the cost of the import of cement up to the place of delivery imported by them was more than Rs. 190/- per bag. (ii) They had availed concessional rate of duty under different clauses, IA(i) and IC, under the Notification No.04/2006-CE dated 01.03.2006 as amended for the import of Ordinary Portland Cement. (iii) The importer/Respondent was not an Industrial consumer as per the conditions stipulated under Rule 2A of the Standards Weight and Measures (Packaged Commodities) Amendment Rules, 2006 and also they had not imported the cement as per the conditions laid down under Clause IC and IA(i) i.e., in bulk or in more than 50 kgs bags directly from the manufacturer. Thus they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternate to pay a fine of Rs. 53,00,000/- under Section 125 of the Customs Act. Also directed to pay penalty of Rs. 35,14,162/- equal to the differential duty imposed under Section 114 A of the Customs Act. 7. The above Order-in-Original was challenged by the Importer before the (CESTAT). The Customs, Excise and Service Tax Appellate Tribunal pleading that he is a manufacturer of hollow bricks and for the said purpose he imported 17450 MT of Ordinary Portland Cement from Pakistan based on High Seas Sale which was deemed to be a direct import for customs guidelines. He engaged the service of licensed Custom House Agent for filing Bills of entry for all the consignments. The documents were examined by the Customs Officials and after proper assessment, the goods were cleared and subsequently utilised by him for manufacturing hollow bricks. The last clearance was during the month of December, 2011. Mr.Wilfield Jose Dennison was summoned under Section 108 of the Customs Act and was asked to sign in a pre keyed computer printout. The order in original to be set-aside since the SCN issued invoking the extended period of limitation alleging mis-declaration of RSP, when such declaration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter claimed concession rate of duty by declaring the RSP of the cement imported is less than Rs. 190 /- per 50 kgs bag. Whereas the price of the cement upto to the place of delivery was more than Rs. 190/-. The importer was not a consumer to avail concession under Clause 1 C of the Notification. The explanation by the importer for the term institutional/industrial purpose is not in tune with the spirit of the Notification. 13. The specific case of the Department is that, the importer by misdeclaration and suppression of facts availed duty concession in the following manner :- a) The import of cement was not from the manufacturer directly. Purchase was from a Trader through High Sea Sales (HSS). b) The Retail Sale Price (RSP) of the cement purchased was not below Rs 190/-. c) The cement imported was not used/ consumed for the institutional/industrial purpose. Admittedly, It was used for manufacturing hollow Bricks and sold to the customers. 14. The gist of the notification No: 4/2006 dated 01/03/2006 is extracted in para No.3 above for easy reference. 15. The term packaged commodities for Institutional/Industrial purpose is defined and explained in Rule 2A (b) under chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 18. In the instant case, it is an admitted fact by the importer that he did not purchase the cement from the manufacturer directly. It was a high sea purchase from a non-manufacturer/trader. No doubt, the Bill of Entry contains details of the manufacturer, but that is not sufficient to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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