TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 1359
X X X X Extracts X X X X
X X X X Extracts X X X X
....0); Bill of entry 2169 dated 6.5.1996 was filed by the appellants, on the basis of the above referred Invoice Rs. 1,82,51,186; Total Concessional Duty Paid was Rs. 27,65,055 and a Bank Guarantee for Rs. 41,47,582 was submitted. 2. The Assistant Commissioner of Customs, Cochin, by letters dated 20.11.1998 and 14.12.1998 sought evidence from the appellant to establish the fulfillment by the appellant of the pro-rata export obligation for the 2nd and 3rd Year; the Assistant Commissioner vide, OIO No: EPCG 4/96 GR VII dated 3.5.1999 confirmed the demand to the extent of Rs. 12,44,275 along with interest; appellants filed an appeal before the Commissioner (Appeals); during the pendency of the appeal, the appellants made a representation dated 18.01.20001 and 09.02.2001, to the Commissioner of Customs for reassessment of the Bill of Entry owing to the inflated price reckoned in the same; the same was declined vide communication dated 15.03.2001, stating that no reassessment can be done after issuance of out of charge; the appellant approached the Hon'ble High Court, vide WP 20897 of 1999, who directed the Appellate Commissioner to consider the issue of valuation also while consideri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ht Bench's permission to seek further re-determination of assessable value and consequential duty liability and has accordingly filed a Petition dated 12.4.2002 admitting a liability of Rs. 32,25,896; it is very clear from the manner of revision of assessable value and duty liability repeatedly just to get their application admitted, that the bona fide of their very acceptance/admission of additional duty liability of Rs. 32,25,896 is questionable and hence the very basis of "full and true disclosure "claimed to have been made by the applicant becomes doubtful (Para 10) 3. The learned counsel for the appellant claims that they paid only U$ 4,31,330 to the German Supplier; the appellant imported the machine in 1996 and paid an amount of Rs. 27,65,055 towards duty (@ 15%) and submitted a Bank Guarantee for Rs. 41,47,582 (total duty liabilityRs. 69,12,637); it was subsequently learned by the appellant that the machine was not worth so much as it did not achieve even 50% of the assured capacity; the matter was taken up with the manufacturers of the machine at Germany - M/s Winter Umwelttechnik, Germany; who were convinced of the fraud played by the supplier of the machine and paid com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a differential duty; 3.3. The learned counsel for the appellants contends that they produced before the Department the entire set of documents which would establish that the payment made by it towards the import of the machinery in question is only an amount of Rs. 1,26,88,264; The tariff rate of duty applicable to the imported machine at the relevant point of time was 37.5% ad valorem; Thus the duty payable at the tariff rate was Rs. 47,58,099; as against this the appellant has already paid an amount of Rs. 69,12,637-00 towards duty(Rs. 27,65,055/-+ Bank Guarantee for Rs. 41,47,582.00); on payment of this amount the appellant must be deemed to be a person who has not availed the benefit of the EPCG Scheme and hence there cannot be any further insistence on fulfillment of any export obligation by the appellant. 3.4. The learned counsel for the appellants further contends that the Appellate Commissioner vide order dated 18.06.2004 directed re-determination of the value of the imported goods based on the subsequent events; the said direction had become final as the revenue did not challenge the direction as regards re-determination of value; even the limited challenge before Tribun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....suance of an EPCG Licence and its decision by the Committee consisting of a team of experts and experienced persons in the field. Hon'ble High Court of Bombay, in the case of Bhilwara Spinners Ltd 2011 (267) ELT 49 (Bom) observed that Since the decision to convert the Licence was taken by the DGFT with the approval of the EPCG Committee (which includes customs authorities), the Commissioner of Customs/Commissioner of Central Excise were bound by the decision of the EPCG committee and could not have challenged the decision; CBEC Circular: 46/2004 dated 26.07.2004 also instructed the Customs Authorities not to take unilateral action on the matter of Valuation pertaining to EPCG; in the instant case, as the EPCG Committee has consciously rejected the request of the appellant for revision of the Assessable Value, Customs Authorities cannot take different stand on the same facts & circumstances. 4.1. Learned AR further submits that there is no legal provisions for re-assessment after five years of issuing "Out Of Charge' under Customs Act, 1962; the initial assessment of the Bill of Entry was made on 6.5.1996, which is an appealable quasi-judicial order; the assessable Value was not ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... obligation, the subject of re-assessment which was not at all dealt in the recovery action Notice is beyond the scope of SCN and no to be entertained; Hon'ble Supreme Court, in the case of Hindustan Polymers Co Ltd 1999 (106) ELT 12 (SC), held that the Tribunal should not, in this case, have passed an order which proceeded upon a basis that is altogether different from that of the demand made upon the appellants. 4.4. Learned AR, submits that the case law cited by the appellants is irrelevant; case of RBF RIG Corporation, Mumbai (2011) SCC 573 is not applicable, as in the referred case, the importer is entitled to get "Essentiality Certificates" from the DGH (Director General of Hydrocarbons) on the basis of the "Recommendatory letters" of ONGC that the impugned import goods are required for the Petroleum Operations; as both the DGH and ONGC delayed to issue the due Certificates and letters, the Importer paid full Customs Duty and approached HC; HC vide Interim order directed ONGC AND DGH to issue the due Certificates on 30.7.2002; both the authorities issued the due certificates/letters; subsequently HC in the Final Order directed the Customs Authorities to dispose of the Refund....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w and in consonance with various departments; under the facts and circumstances and taking into account of the legal position on the issue, the Appeal preferred by the importer is liable for rejection in the absence of any merits. 5. Heard both sides and perused the records of the case. 6. The main arguments of the appellant are that: (i) The value of the machines imported by them under EPCG should be valuated as per the actual value of the machine imported again and not the original machine. (ii) Learned Commissioner (A)'s order was remanded to the original authority for reconsideration of the value and as the department has not appealed against this issue, the order attains finality. (iii) once the value of the machine is redetermined the amount already paid by them is more than the normal applicable duty payable on the impugned goods even if the concessional under EPCG Scheme is not availed and therefore, the import should be treated as having not availed the benefit of concessional rate of duty under EPCG scheme. 7. We find that learned AR forcefully rebutted all the claims of appellants on the following grounds. (i) There is no provision under law to consider the appell....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er India Pvt. Ltd. (supra). We find that the facts of the case discussed therein are quite different from those in the instant case. In the case of M/s. Reiter India Pvt. Ltd. (supra), the import was on 25.5.2011 and refund was filed in September 2011 i.e., within a period of six months. In the instant case, it is beyond 5 years. Moreover, in the case of Reiter India Pvt. Ltd. (supra), the imports were not under EPCG as is in the present case. We find merit in the argument of the Commissioner (AR) that the Bill of Entry was not provisionally assessed and the appellants have not appealed against the Bill of Entry. We find that on this count the legal position on reassessment is enunciated in the cases of CCE Kanpur vs. Flock India Pvt. Ltd. (supra) and Priya Blue Industries Ltd. (supra). We find that Hon'ble Apex Court of India has recently enunciated the same principle in the case of ITC Ltd. in Civil Appeal No.293-294/2009. The Hon'ble Apex Court observed that: "47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessmen....