2018 (6) TMI 565 - AT - Central Excise

Tribunal Upholds Denial of Duty Credit Over Malafide Intent

The Tribunal upheld the authorities' decision to deny the appellant credit for Countervailing Duty (CVD) and Special Additional Duty (SAD) paid, finding ... CENVAT credit - duty paying invoices - Rule 9 (1) (b) of CCR, 2004 - approach to Settlement Commission - Undervaluation of imported goods - Held that: - The imports were made by the appellant from their related person located in Korea and admittedly, the value of the goods was not reflected in the invoices. It was only packing and logistics cost, which was raised in the invoices placed before the Customs for the purpose of assessment and calculation of customs duty. These facts stand admitted by the assessee in their own letter referred in the SCN - the said modus operandi was adopted by the appellant with the malafide intention to evade payment of customs duty in respect of the value of the second hand capital goods. If that be so, their subsequent approaching the Settlement Commission is sprinkled with suppression, mis-statement, fraud and collusion etc. The provision of Rule 9 (1) (b) of Cenvat Credit Rules debar taking of Cenvat credit of duty paid by supplementary invoices - credit not allowed - appeal dismissed - decided against appellant. Issues:1. Determination of proper value of imported goods.2. Initiation of proceedings against the appellant.3. Availment of credit of CVD and SAD paid by the appellant.4. Interpretation of Rule 9(1)(b) of Cenvat Credit Rules, 2004.5. Consideration of Settlement Commission's order.6. Scrutiny of facts to determine malafide intention.Analysis:Issue 1: Determination of proper value of imported goodsThe appellant imported goods declared as 'Product Screen Separator Drive' from South Korea at a declared assessable value. However, upon inspection, it was found that the value declared was lower than the actual value determined with the help of a Chartered Engineer and SGS. The proper value of the goods was found to be significantly higher than the declared value.Issue 2: Initiation of proceedings against the appellantProceedings were initiated against the appellant through a Show Cause Notice (SCN) proposing a demand for the differential duty amount along with confiscation of goods and penalties under the Customs Act, 1962. The notice referred to a letter from the importer clarifying the nature of the imported goods as second-hand machinery.Issue 3: Availment of credit of CVD and SAD paid by the appellantThe appellant approached the Settlement Commission, which accepted their deposit of the entire differential duty liability. Subsequently, the appellant availed credit of Countervailing Duty (CVD) and Special Additional Duty (SAD) paid by them. However, this credit was denied by the authorities citing issues with the supplementary invoices raised for duty payment.Issue 4: Interpretation of Rule 9(1)(b) of Cenvat Credit Rules, 2004The authorities denied the credit based on Rule 9(1)(b) of the Cenvat Credit Rules, which allows credit on the basis of supplementary invoices unless duty payment was due to fraud, collusion, or wilful misstatement to evade duty payment. The appellant contested this denial citing legal precedents.Issue 5: Consideration of Settlement Commission's orderThe Settlement Commission's order granting immunity from confiscation, penalty, and prosecution was a key point of contention. The appellant argued that approaching the Settlement Commission did not imply admission of fraud or malafide intention.Issue 6: Scrutiny of facts to determine malafide intentionThe Tribunal analyzed the facts of the case and concluded that the appellant's actions, including undervaluing the imported goods and subsequent approach to the Settlement Commission, indicated a malafide intention to evade duty payment. This led to the rejection of the appellant's appeal, upholding the authorities' decision to deny the credit of duty paid by supplementary invoices.