TaxTMI 
TaxTMI 
2019 (12) TMI 652
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....ne crore thirty six lakh sixty three thousand twenty one only) liable to confiscation under the provisions of section 111(d) and (m) of the Customs Act, 1962. However the same are not available for confiscation. 5.1.3. I confirm the demand of differential duty of Rs. 71,38,777/- (Rupees seventy one lakh thirty eight thousand seven hundred seventy seven only) and order its recovery from M/s. Hitech Sweet Water Technology Pvt. Ltd., under section 28(1) of the Customs Act, 1962. 5.1.4. I confirm the demand of Rs. 6,74,584/- (Rupees six lakh seventy four thousand five hundred eighty four only) being interest on the amount of duty confirmed in para 5.1.3. above and order its recovery from M/s. Hitech Sweet Water Technology Pvt. Ltd., under section 28AB of the Customs Act, 1962. 5.1.5. I impose a penalty of Rs. 78,13,361/- (Rs. 71,38,777/- + Rs. 6,74,584/-) (Rupees seventy eight lakh thirteen thousand three hundred sixty one only) under section 114A of the Customs Act, 1962 on M/s. Hitech Sweet Water Technology Pvt. Ltd. 5.1.6. I impose a penalty of Rs. 5,00,000/- (Rupees five lakhs only) under section 114AA of the Customs Act, 1962 on M/s. Hitech Swee....
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....d had to be used along with other essential parts. Thus all the parts put together including the imported membrane would only constitute the "water purification equipment" the benefit of exemption claimed was sought to be denied to them. 2.5 Appellant being a manufacturer and trader of water purification equipments and parts thereof was fully aware of the actual use of the said imported item since the same were being used by them in manufacture of their own products. It was also noticed that they were paying the duty without availing the benefit under notification No 6/2006-CE, in respect of the same imported goods from the same supplier in past. Thus importer had misrepresented and suppressed the facts about actual nature and use of the said goods to avail undue benefit of CVD exemptions. 2.6 Appellants admitted and paid the duty along with interest due in respect of each B/E as detailed below: Bill of Entry Assessable Value 'Rs Duty paid in Rs Interest Paid in Rs Number Date On Clearance Differential 687534 29.01.10 6850565 824397 812537 126222 757278 24.07.10 11309551 1360991 1341410 168135 802863 25.08.....
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....Section 28A and for the penalty imposed under Section 114A and114AA of the Customs Act, 1962; • They had not misdeclared the goods at the time of the clearance and description given by them on the B/E was same as per the invoice and packing list. Even the issue involved is no one of misdeclaration of the goods but is of in-correct availment of benefit under exemption notification No 6/2006-CE. In view of various pronouncements as follows, it cannot be inferred that they had claimed the benefit of the wrong exemption notification with intent to evade payment of duty • Mahavir Corporation [2003 (160) ELT 355 (TBom)] • Northern Plastic Ltd [1998(101) ELT 549 9SC)] • Surbhit Impex P Ltd [2012 (283) ELT 556 9TMum)] • N D Metals Ids Ltd [2009 (236) ELT 83 (T)] • Gaurav Enterprises [2006 (193) ELT 532 (T)] • Padamanabh Silk Mills [2006 (193) ELT 536 (Guj)] • Jaramsons Plastic Industry [1993 (63) ELT 558 (T)] • Mala Bhakatani [1993 (63) ELT 563 (T)] • Bajaj Health & Nutrition P Ltd [2004 (166) ELT 189 (T)] • Assessment is basically the job performed....
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....ervention of the officers of custom most of the case on a miniscule percentage of cases were referred by the system for assessment by the officer. Since scheme of assessment was entirely different during the relevant period, the judgments relied upon by the appellants for arguing limitation will not be applicable. • Hon'ble Supreme Court has in case of Dilip Kumar & Co [2018 (361) ET 577 (SC)] clearly held that the person claiming the benefit of exemption is required to satisfy himself and then claim the benefit of exemption. Entire responsibility in respect of exemption claimed thus is on the claimant. • When the benefit non available exemption has been claimed extended period of limitation is applicable Hotline CPT Ltd [2016 (333) ELT 356 (T-Del)] 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 as submitted by the learned Authorized Representative is no longer res integra and covered by the decision in case of Pure & Cure Technology [2019-TIOL-38-CESTAT-Mum] wherein it has been held as follows: "7. We find that while discarding the said argument....
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.... 237204 19105 604776 13.12.10 23.05.2011 243808 16231 648759 07.01.11 24.05.2011 678460 38478 673708 21.01.11 24.05.2011 754664 38456 689913 31.01.11 20.05.2011 240902 10890 690383 31.01.11 20.05.2011 644045 29114 692552 01.02.11 20.05.2011 242751 10874 792602 31.03.11 20.05.2011 201192 4217 792603 31.03.11 20.05.2011 566623 11876 Total 7705392 658998 4.4 In his statement recorded under Section 108 of Customs Act, 1962 on 20.07.2011, Shri Vijay Shobhalal Shah, Managing Director of the Appellant stated as follows: "However the imported goods are not apparatus or equipment by itself and it is only part of the water purification equipment/apparatus. I claimed the benefit of the aforesaid notification by oversight. However we also admit that the goods are (said membrane) not eligible for benefit of the said notification that's why we have all ready paid the differential duty with interest as applicable. I .... that we have not misdeclared anything, we have already admitted that we are not eligible for above notification and that's why we paid d....
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.... true, might have been founded in reason, but I am not sure that it was. There is another kind of estoppel - estoppel by representation- which is founded upon reason and it is founded upon decision also." Per Jessel, M.R. in General Finance & Co. v. Liberator, L.R. 10 Ch.D.15(20). See also in Simon v. Anglo-American Telegraph Co., L.R. 5 Q.B.D.202 Bramwell, L.J. said" An estoppel is did to exist where a person is compelled to admit that to be true which is not true and to act upon a theory which is contrary to the truth." On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a person is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim, allegans contrarir non est audiendus (a party is not be heard to allege the contrary) and is that species of presumption juries et de jure- (absolute or conclusive or irrebutable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done; it is in truth a kind of argumentum ad hominem. "In our old law boo....
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....act or omission where silence cannot amount to a representation, but, where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted." (Per Lord Tomlin, Greenwood v. Martins Bank (1933) A.C.51.) See also Thompson v. Palmer, 49 C.L.R. 547; Grundt v. Great Boulder, 59 C.I.R.675; Central Newbury Car Auctions v. Unity Finance (1957)1 Q.B.371SD.MN "Estoppe,' commeth of a French word "estoupe", from whence the English word stopped, and it is called an estoppel, or conclusion, because a man's owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truth; and Littleton's case proveth this description" (Co.Litt.352 a, where it is said estoppel is of three kinds, i.e., matter (1) of record, (2) in writing, i.e, semble, by deed, (3) in Paiis). To the same effect is the definition in Termes de la Ley. (See Stroud's Judicial Dictionary, Fourth Edition, Page 943). "An estoppel," says Lord Coke, "is where a man is concluded by his own act or accep....
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....rsz under title 'Conduct of Indifference or Acquiescence' it has been noted as follows: "40. It is, however, with reference to the third class of cases that the greatest difficulty has arisen, especially where statements have been made, expressly or by implication, which cannot properly be characterized as representations at all. It must now be regarded as settled that an estoppel may arise as against persons who have not willfully made any misrepresentation, and whose conduct is free from fraud or negligence, but as against whom inferences may reasonably have been drawn upon which others may have been induced to act. The doctrine of Acquiescence may be stated thus: "If a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act." (Duke of Leeds v. Earl of Amherst 2 Ph. 117 (123) (1846). This is the proper sense of the term acquiescence, "and in th....
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....le." In Snell's Principles of Equity, 27th Edition, Chapter 3, 12 Maxims of Equity have been indicated. Of these maxims principles 5, 6 and 7 are relevant for the purpose of the case in hand. They are as follows: x x x x "5. He who seeks equity must do equity. 6. He who comes into equity must come with clean hands. 7. Delay defeats equities, or, equity aids the vigilant and not the indolo Vigilantibus, non dormientibus, jura subveniunt." x x x x x The following passage from the "Law relating to Estoppel by Representation" by George Spencer, Second Edition as indicated in Article 3 is as follows:- "It will be convenient to begin with a satisfactory definition of estoppel by representation. From a careful scrutiny and collation of the various judicial pronouncements on the subject, of which no single one is, or was perhaps intended to be, quite adequate, and many are incorrect, redundant, or slipshod in expression; the following general statement of the doctrine of estoppel by representation emerges; where one person ("the representor") had made a representation to another person ("the representee") in words or by acts and con....
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.... transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It may be that on attaining majority he has the option to disown the transaction and disgorge the benefit or to accept it and adopt it as his own. Whether after attaining majority the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case. In Provash Chandra Dalui v. Biswanath Banerjee (AIR 1989 SC 1834), it was observed as follows: "21. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The....
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.... has admitted by them. The fact that statement has been recorded nearly two months after the act of actual deposit the statement is voluntary, in absence of any retraction of the same. Hence we do not find any merits in submission made by the Appellant in respect of the differential duty confirmed along with interest. 4.6 Section 28 (2) of the Customs Act, 1962, reads as follows: "(2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (1) shall inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest:" In terms of this sub section, when the son has admitted duty liability and had paid the same along with the interest due, the proceedings should have been abated against that person. In our view it is not the case of willful misstatement, suppression or mis-declaration, but a case of bonafide error in claiming the benefit of exemption which was not due to ....