TaxTMI 
TaxTMI 
2018 (11) TMI 766
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.... it invoked Section 28 of the Customs Act, 1962. 5. Thus, the Revenue alleged in terms of that provision that the extended period of limitation can be invoked for there is a willful misstatement or suppression of facts by the assessee. 6. Mr. Sridharan would submit that the very fact that when the Revenue brought the issue before the Tribunal and agitated it so also when the Tribunal considered the case of the assessee, there was a difference of opinion between the members deciding that appeal. The appeal was referred to a third member on the limited issue of classification and namely the difference of opinion. In the meanwhile, the Ahmedabad Bench of the Tribunal rendered an order on the issue of classification and based on which the Mumbai Bench concluded the matter in favour of the Revenue. The assessee has paid up the amount of duty and is not seeking any relief in relation to the same. That there was a difference of opinion would denote as to how an arguable case was raised and, therefore, the extended period of limitation cannot be invoked. 7. In the impugned order, barring noting the rival contentions, the Tribunal, according to Mr. Sridharan, has passed a cryptic o....
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....on on the rival contentions but finding that the Tribunal having not examined the issue of time-bar or extended period of limitation completely that we have no alternative, but to set aside the impugned order of the Tribunal only to this limited extent. The appeal of the assessee before the Tribunal shall stand revived only for this limited purpose and the Tribunal shall now examine as to whether the recovery of duties are levied or not levied or erroneous and on account of the acts attributable to the assessee and within the meaning of sub-section (4) of Section 28 of the Customs Act, 1962. All incidental and ancillary matters to the same shall also be allowed to be raised and examined or scrutinized by the Tribunal. We clarify that we have kept all contentions open and merely because we have admitted this appeal and passed an order of remand or allowed it in the above terms, does not mean that any conclusive opinion is rendered or expressed by this Court." 2.0 Thus matter in terms of remand order needs to be heard on the limited extent in respect of invoking the extended period of limitation. The submission made by the appellant before the High Court, was effectively to the ef....
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....issioner vs Ratnamani Metals & Tubes Ltd [2016 (331 ELT A45 (SC)], review petition dismissed in [2016 (331) ELT A89 (SC)] iii. Mill Test Certificate (MTC) was always submitted to the department at the time of assessment of imported goods. Department has wrongly stated that the MTC was not submitted at the time of importation. Department has itself laid down the requirement for submission of MTC at the time of assessment by way of various public notices and standing orders. (Refer Public Notice No 28/2005 dated 2/12/2005 issued by the Commissioner of Customs, air Cargo Complex Mumbai). The fact about submission of MTC is also evident from the examination reports pertaining to imports in question. The said reports clearly state that the consignments have been verified in conjunction with the MTC's. iv There is no intention to evade payment of duty. The total duty leviable in respect of the alloy steel falling under heading 7209 and non alloy steel falling under heading 7225, has been same for all the periods except during the period 18.04.2008 till November 2008.. Irrespective of the duty structure they had always classified the CR Coil under heading 7209 as Non Alloy Steel. It....
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....edited Clients" under the Accredited Clients Programme will form a separate category to which assured facilitation would be provided. Except for a small percentage of consignments selected on a random basis by the RMS, or cases where specific intelligence is available or where a specifically observed pattern of non-compliance is required to be addressed, the Accredited Clients will be allowed clearance on the basis of self assessment i.e. as a matter of course, clearance would be allowed on the basis of their declarations, and without examination of goods. Further, this benefit would be available to the registered Accredited Clients at all the ports in the country where EDI and the RMS are operational. It is expected that this measure will bring about drastic reduction in the dwell time of cargo and transaction costs for such importers." i. In terms of the above circular, import consignments of ACP Status holders were allowed to clearance on the basis of self assessment. Hence when the goods are allowed clearance on the basis of self assessment, then department cannot be faulted for the assessment made by the appellant. ii. Various authorities which support the invocation of ....
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....s defined by Chapter Note to Chapter 72 of the Schedule 1 to Central Excise Tariff Act, 1985. iii. Further enquiries were made in respect of past clearances and hence all the bill of entries filed by appellants, after 29/04/2018 were taken up for scrutiny. iv. Thus it was found that appellants had since 29/04/2018 filed more than 150 Bill off Entries in respect of the same imported items for which they had wrongly claimed the benefit of exemption under Notification No 21/2002-Cus (Sl No 190C). Admitting their mistake appellants deposited the differential duty due in respect of all the said bill of entries as detailed below: Table 1: Details of Payment of Duty against past clearances Date of Deposit Amount Deposited in Rupees 7^th November 2008 1,00,00,000 12^th November 2008 1,00,00,000 17^th November 2008 80,00,000 25^th November 2008 18,00,000 24^th December 2008 3,83,689 Total 3,01,83,689 vii In respect of eleven live Bill of Entries, appellant deposited the differential duty of Rs. 80,32,473/- viii. Goods totally valued at Rs. 13,10,71,798/- (rupees Thirteen Crores ten Lakhs Seventy One Thousand Seven Hundred Ninety....
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.... means,- (a) in a case where duty is not levied or not paid or short-levied or short-paid, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or re-assessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest." 8.0 Appellants have vide letter of their counsel dated 5.01.2017, submitted a detailed chart of Bill of Entries in respect of which the demands have been made. From the said chart in respect of which the appellants have claimed the demand to be barred by limitation, following details are worth noting- Table 2: Bill of Entries for which demand claimed to be time barred S No Bill Of Entry No. Bill of Entry date Date of examination Differential Duty in Rs 1 837376 30.04.2008 12.05.2008 4,24,637 2 840908 20.05.2008 28.05.2008 28,51,030 3 840918 20.05.2008 28.05.2008 5,54,987 4 840920 2....
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....for CR Coils earlier cleared as per Annexure B to the Show Cause Notice should not be adjusted/ appropriated towards differential duty on the goods as per Annexure B. Further when the Appellants have themselves admitted the differential duty liability and have paid the same within the prescribed period of limitation under section 28, they should be estopped from taking the ground of limitation in subsequent proceedings. In case appellants intended to disagree with the duty demanded, instead of paying the same they should have asked the department to issue a show cause notice on 7th November 2008, and then it was for the department to issue the show cause notice within the prescribed period of limitation which ended after the said date. Thus even if the appellants argument that extended period of limitation cannot be invoked in the present case is admitted, even then the demand cannot be held to be time barred as the all the amounts had been paid by the appellants, prior to expiry of normal period of limitation. 10.1 Now examining the issue in respect of misdeclaration etc for the purpose of invoking extended period of limitation under section 28, and for imposition of penalties ....
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.... "I do agree with the conclusion drawn by the ld. Member (Technical) Shri S.K. Gaule that the impugned goods would rightly fall under the category of other alloy steel and not eligible for the benefit of Notification. Before arriving at the conclusion, I want to mention that during the course of arguments, the ld. advocate for the appellants, has taken a stand that the impugned goods are not "other alloy steels" as defined in Chapter Note 1(f) of Chapter 72. Chapter Note 1(f) of Chapter 72 defines "other alloy steel" which states that steels not complying with the definition of stainless steel and containing by weight one or more of the following elements in the proportion shown. From the above, the expression "one or more" means that if one of the listed elements is present in the imported coil and if that element is equal to or exceeds the limit mentioned in Note 1(f) above, then Note 1(f) above is satisfied and the imported coil will be treated as "other alloy steels". If the coil contains more than one element listed in the Note 1(f) above, then all the elements present in the imported coil should be equal or more than what is prescribed in the Chapter Note 1(f) above. If no....
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....ed. If the appellants were aware that the goods imported by them were other alloy steels, definitely by declaring them an classifying them as non alloy steels to avail the benefit of exemption is nothing but a misdeclaration. 10.7 Appellant have also argued vis a vis the intention to evade payment of duty. They have in their submissions stated that irrespective of the duty structure, appellants had always classified their product under heading 7209 as non alloy steel, and hence there cannot be any intention to evade payment of duty. The argument advanced cannot be accepted, because issue itself is not limited to classification of goods, but is in respect of the exemption claimed. When the duty structure on both alloy steels and non alloy steels was identical, there could have been no short payment of duty. However when said categorization lead to claiming and availment of exemption that was not admissible, then definitely there was intent to evade payment of duty. This controversy has been set at rest by the Constitutional Bench of the Apex Court referred above. 10.8 Appellant have placed reliance on series of decisions referred in para 3(ii) supra, to argue that it was for r....
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.... filed the declarations as were required to be filed by them and it was for department to act on the basis of declaration. The argument of appellant is based on wrong appreciation of the scheme. The appellant were not required to file the declarations as were mandated to be filed under the said scheme but on the basis of the trust imposed by according the ACP status, they were required to ensure filling of correct declarations at the time of importation. The status conferred provides for speedy clearance of the imported goods without much or minimum scrutiny. It imposes additional responsibility on the status holder to make correct and complete declaration. Even otherwise if the declaration made at any time is found to be incorrect the charge of misdeclaration is natural consequence. In our view appellants have misdeclared about the goods imported, to the extent of claiming benefit of exemption not admissible in their case. The reliance placed by the appellants on the two authorities referred in para 3(vi) supra is totally misplaced because in those cases the persons concerned were not operating under any scheme such as ACP scheme, which were based on the trust that person making t....