TaxTMI 
TaxTMI 
2009 (7) TMI 232
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....ated 1-4-97. The Bills of Entry were filed on 2-2-99 and 8-2-99. Notification No. 31/97 provides exemption for material imported against advance licences issued after 1-4-97 and require export obligation to be fulfilled as per the export/import policy and subject to other conditions specified in the notification. The department took up the investigation on the basis of intelligence that the coal imported has been disposed of in the domestic market and as a result of investigation conducted, it was found that VKIL has sold the 18,812 MTs of coal to M/s. Tata Chemicals Ltd. (TCL for short), 28,636 MTs of coal to M/s. Saurashtra Cement Ltd. (SCL for short) and 10,725 MTs were sold through their branches located in Haryana and Punja....
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....n No. 31/97 has been furnished as it only provides for demand of duty along with interest. (iv) Assessment if provisional for one reason, is provisional for all purposes. (v) The demand for duty cannot be made when assessments are provisional till such time as it is finalized and relevant date under Section 28 of Customs Act, 1962 is the date of finalization of assessment. (vi) No penalty is imposable without reasons setting out the manner in which the Appellant has contributed to evasion of duty. 3. In his argument on behalf of SCL, the learned counsel also submitted that it is settled law that for imposition of penalty under Rule 26 and Rule 209A under Central Excise Rules, 2002 and Central Excise Rules, 1944 respectively, men....
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.... and therefore the limited question before the Tribunal is as to whether the appellants are liable to penalty. As regards SCL, he submits that it is not correct to say that SCL was not aware of that the goods were imported and cleared under Notification No. 31/97. Even though high sea sale agreement according to the appellant was cancelled, no evidence has been put forth by them to show that there was no high sea sale agreement at the time VKIL filed Bill of Entry. He also submits that they had paid sales tax only after investigation was taken up by Revenue which again goes to show that to the world at large and to the statutory authorities, the appellants had claimed that coal was procured under high sea sale agreement only. It is his subm....
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.... The fact that even SCL who had high sea sale agreement, had also paid the duty amount in addition to the cost of the coal, goes to show that none of the buyers was really aware of the fact that coal was imported and cleared, claiming benefit of Notification No. 31/97. We are not concerned with the liability to duty herein since the importer who is liable to duty has not filed appeal. The duty demand has been confirmed in the impugned order against VKIL only. Therefore, the only question is liability to penalty. 5.2 The first argument put forth was that no penalty is imposable in view of the fact that the goods are not at all liable to confiscation unless the provisional assessment is finalized. Section 111(o) of the Customs Act, 1962 is....
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....L they have collected even the duty amount. Therefore, argument that the provisional assessment and finalization of assessment was essential before the goods could be confiscated, cannot be accepted. Several decisions have been cited, but they were rendered in the light of set of different factors and circumstances and in view of the fact that the facts in this case are not comparable to any of these cases cited before us, we are not in a position to take into consideration the case laws cited in support of his argument. Therefore, the order of the Commissioner holding that the goods are liable for confiscation has to be upheld. 5.3 Coming to the liability of SCL, very fact that SCL paid not only the price of coal but also the duty and i....
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....impugned order as regards liability of the goods to confiscation under Section 111(o) of Customs Act, 1962, the penalty against Shri V.K. Agarwal has to be upheld. We also find that the appellant had claimed that when the assessment is provisional, it is open to both - the party as well as to the department - to correct any mistake which may have crept in during provisional assessment before finalization and this is one of the cases where assessment has not been finalised and hence no penalty can be imposed. It was also argued that there was no finding of the Commissioner of involvement of Shri V.K. Agarwal. We do not find any force in any of these claims. It is difficult to imagine that transaction of this volume would be conducted without....