TaxTMI 
TaxTMI 
2019 (10) TMI 379
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....for confiscation, I do not impose any redemption fine in lieu of confiscation. ii. I order that total differential Customs duties of Rs. 91,50,097/- (Rupees Ninety One Lakhs Fifty Thousand Ninety Seven Only) in respect of 4 Bill of Entry's No 780187 dated 24.03.11, 3145027 dated 07.04.11, 3156426 dated 08.04.11, 4674399 dated 18.09.11 be demanded and recovered from M/s Sarkar Ferro Alloys Pvt Ltd., in terms of provisions of proviso to erstwhile Section 28(1) of the Customs Act, 1962. iii. I order that interest on the aforesaid differential Customs duties (as in clause ii above) be recovered from M/s Sarkar Ferro Alloys Pvt Ltd., under the provisions of Section 28AA, as may be applicable, of the Customs Act, 1962. iv. I impose Penalty of Rs. 10,00,000/- (Rupees Ten Lakhs Only) on M/s Sarkar Ferro Alloys Pvt Ltd., under Section 112(a), , of the Customs Act, 1962. v. I impose Penalty of Rs. 1,00,000/- (Rupees One Lakhs Only) on Shri Ramesh Shah, Director of M/s Sarkar Ferro Alloys Pvt Ltd., under Section 112(a), , of the Customs Act, 1962. vi. The final assessment of Bills of Entry No 778026 dated 22.03.2011, 316405 dated 07.04.2011 and 443....
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....irani, Consultant for the Appellant and Shri A P Kothari, Additional Commissioner, Authorized Representative for the Revenue. 3.2 Arguing for the Appellants, learned Consultant submitted that- • Since the Bill of Entries have been verified, examined and assessed by the proper officer before the clearance of the goods they cannot be guilty for mis-declaration with intention to evade payment of duty, hence extended period could not have been invoked. • There was confusion with regards to applicability Chapter Note 4 to Chapter 26 in Excise Tariff, (as admitted by the Circular of 2012). It is settled position in law that laying claim to some exemption, whether admissible or not is a matter of belief and not amount to mis-decalaration; • In view of the decision of the Apex Court in case of Star Industries relied upon by the revenue, the goods could not have been held liable for confiscation; • Denial of exemption in respect of the Bill of Entries filed prior to date of receipt of Presidential Assent for Finance Act, 2011 is completely unsustainable. It would only after the publication of the Finance Act,2011, that the amendments ma....
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....notice has been issued within period of one year, i.e. normal period of limitation and hence the for making the demand the issue of misdeclaration will become irrelevant. • However it is fact that appellants have misdeclared the goods imported by them by declaring them as Molybdenum Ore instead of Molybdenum Ore Concentrate to avail the benefit of exemption from CVD under Notification No 4/2006-CE, and hence the goods have been rightly held to be confiscable under Section 111(d) and (m) of the Customs Act, 1962.However since the goods were not available for confiscation, Commissioner has not confiscated nor imposed any redemption fine; • Appellants have short paid the duty at the time of clearance of goods, and hence the demand of interest under Section 28AA is justified; • For the act of mis-declaration Commissioner has imposed penalty under Section112(a) which is neither excessive nor unjustified looking into the quantum of duty sought to be evaded. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The issue on merits has been settled by the Hon'ble Apex Court in....
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.... the decision in Hindustan Gas primarily rested on the reasoning that roasting of an ore to obtain concentrate would not amount to manufacture and ore and concentrate are one and the same inasmuch as concentrate remains ore and only impurities are removed therefrom. On this premise, it was held that ore is genus and concentrate is a specie thereof. 28. According to us, it is very clear from the reading of the judgment in Hindustan Gas case that basic and the common thread which runs throughout the decision is that subjecting ore to the process of roasting does not amount to manufacture. This very basis gets knocked off with the amendment carried out in the year 2011 with the insertion of Note 4. Note 4 now categorically mentions that the process of converting ores into concentrates would amount to 'manufacture'. Therefore, it cannot now be argued that roasting of ores and converting the same into concentrates would not be manufacture. For the same reason, the judgment in MMTC becomes inapplicable and reliance upon Kirk-Othmer's Encyclopedia becomes irrelevant. With the addition of Note 4, a legal friction is created treating the process of converting ores into concentrates....
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....mission of the learned counsel for the assessee predicated on Note 2, then Note 4 even after its conscious inclusion, would be rendered otiose which cannot be countenanced. Therefore, Note 2, when seen along with Note 4, has to govern itself in limited territory. On the basis of deeming fiction created by Note 4, once we arrive at the conclusion that process of roasting of Ore amounts to manufacture and it creates a different product known as Concentrate, for the purpose of exemption notification, which exempts only 'Ores' it is not possible to hold that Concentrate will still be covered by the exemption notification. Therefore, harmonious construction of Note 2 and Note 4 would lead us to hold that in those cases when Note 4 applies and Ores becomes a different product, it ceases to be Ores. 31. We, thus, are of the opinion that in the impugned judgment, the Tribunal has rightly arrived at the conclusion that by virtue of Note 4, concentrate has to be necessarily treated as different from ores which is deemed as manufactured product after Molybdenum Ores underwent the process of roasting. Once we keep in mind that conversion of ores into concentrate is considered as manuf....
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....nd (b) even in regard to this limited period, it is restricted to the imposition of the additional duty of six annas per lb. which was levied, beyond the eight annas per lb. collected from the appellants by virtue of the Finance Bill under the provisions of the Provisional Collection of Taxes Act, 1931. It would seem to be rather a strange result to achieve that the tax imposed satisfies every requirement of a "duty of Excise" in so far as the tax operates from and after April 28, 1951, but is not a "duty of Excise" for the duration of two months before that date. Learned Counsel conceded, as he had to, that even on the decision relied upon by him, the fact that owing to the operation of economic forces it was not possible for the taxpayer to pass on the burden of the tax, did not alter the nature of the imposition and detract from its being a "duty of Excise". For instance, the state of the market might be such that the duty imposed upon and collected from the producer or manufacture might not be capable of being passed on to buyers from him. Learned Counsel urged that this would not matter, as one had to have regard to "the general tendency of the tax" and "the expectati....
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....xplanation 1:- For the purpose of this section, "relevant date" means - (a) in a case where duty is not levied, 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 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." In our view show cause notice issued within one year from the date of filing of Bill of Entry, is definitely within the normal period of limitation and demand made therein cannot be held to be hit by limitation under Section 28 of the Customs Act, 1962. Rejecting arguments similar to those advanced by advanced the appellants in respect of erstwhile Section 28, Hon'ble Apex Court has in case of Jain Shuddh Vanaspati [1996 (86) ELT 460 (SC)] held as follows: "5. It is patent that a show cause notice under the provisions of Section 28 for payment of Customs duties not levied or short-levied or erroneously refunded ca....