Show Cause Notice for short CVD payment on Motor Spirit imports partly valid under Section 18 and 124

CESTAT Chennai held that Show Cause Notice under Section 18 read with Section 124 of Customs Act, 1962 regarding short payment of CVD on Motor Spirit imports was partly valid. The appellant imported Motor Spirit and later added additives for branding outside customs area. The tribunal found no malafide intention to evade customs duty as the department failed to establish that appellant had predetermined the quantity for branded sale at import time. While confirming higher CVD assessment with interest, the tribunal set aside confiscation of goods, redemption fine, and penalties under Section 112(a). Appeal allowed in part.

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Issues Involved:
1. Validity of Show Cause Notice issued by DRI.
2. Provisional vs. Final Assessment.
3. Mis-declaration and violation of Notification conditions.
4. Confiscation of goods, imposition of redemption fine, and penalties.

Summary:

1. Validity of Show Cause Notice issued by DRI:
The appellant did not contest the validity of the Show Cause Notice issued by DRI in this appeal. An affidavit was filed to this effect and taken on record.

2. Provisional vs. Final Assessment:
The appellant argued that the assessment was provisional and not finalized, making the confiscation, redemption fine, and penalties unsustainable. The Tribunal referred to several judgments, including *AS Syndicate (Warehousing) P. Ltd. Vs. Commissioner of Customs (Port)* and *Commissioner of Customs (Import) Vs. Mahesh India*, which held that a Show Cause Notice under Section 28 of the Customs Act, 1962 is not maintainable when the assessment is provisional. The Tribunal agreed with these precedents, stating that the Show Cause Notice issued under Section 18 read with Section 124 for provisional assessment is without jurisdiction.

3. Mis-declaration and violation of Notification conditions:
The appellant contended that at the time of import, the goods were intended for sale without a brand name, fulfilling the conditions of Notification No. 12/2012-CE dated 17.03.2012. They argued that due to the nature of the goods, it was not possible to estimate the quantity to be sold as branded at the time of import. The Tribunal noted the difficulties faced by Oil Marketing Companies as highlighted in Circular No. 1085/06/2022-CX dated 31.10.2022 and found no malafide intention on the appellant's part to evade duty.

4. Confiscation of goods, imposition of redemption fine, and penalties:
The Tribunal held that the order for confiscation of goods, imposition of redemption fine, and penalties under Section 112(a) of the Customs Act, 1962 was unsustainable. The appellant's payment of higher CVD and the absence of malafide intention were key factors. Consequently, the Tribunal set aside the order of confiscation, redemption fine, and penalties while upholding the finalization of assessment and confirmation of higher CVD along with interest.

Conclusion:
The appeal was partly allowed, setting aside the confiscation of goods and imposition of redemption fine and penalties, while maintaining the finalization of assessment and confirmation of higher CVD.

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