TaxTMI 
TaxTMI 
2024 (3) TMI 649
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....uct 'Frozen Leather Jacket Fish' under different heads of Chapter 3 such as 0303 1900, 0303 4900, 0303 6900 on which the benefit of 5% on Free on Board (FOB) value of exports continued, while some of the exporters continued classifying the Leather Jacket Fish under Chapter Heading 0303 8999 and not claiming MEIS benefit. Investigations undertaken by Directorate of Revenue Intelligence (DRI) revealed that the appellant had exported Leather Jacket Fish since 01.04.2015 under Chapter Heading 0303 1900. The export had taken place under MEIS benefit for the period from 14.07.2015 to 21.09.2016. Since the above goods are rightly classifiable under Chapter Heading 0303 8999, the appellant had mis-declared the classification under Chapter Heading 0303 1900 to claim the benefit of MEIS. The appellant had suppressed the facts with the authorities concerned and availed the benefit under MEIS and the benefit which was earned as scrips was sold to other buyers/importers for defraying duties on imports made by them. Accordingly, notices were issued to the appellant and all those importers who had bought the scrips from the appellant. The Commissioner in the impugned order observed that the appel....
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....documents verified by the customs and the same was issued by the DGFT after verification of the documents and these scrips where registered with the customs after necessary verification, therefore invoking the provisions of Section 28AAA of the Customs Act, 1962 is bad in law unless the elements of collusion/wilful statement or suppression of facts are proved. Relying on the decision of the Supreme Court in the case of Northern Plastic Limited vs. Collector of Customs and Central Excise: 1998 (101) E.L.T 549 (S.C.), it is submitted that unless suppression or wilful statement is proved, the question of invoking the provisions of Section 28AAA is not sustainable. They also relied on the following decisions: * Graphite India Limited versus Commissioner of Customs (Port), Kolkata: 2015 (325) ELT 777 (Tri.-Kol.) * S.S. Enterprises versus Commissioner of Customs, Hyderabad: 2019 (366) ELT 332 (Tri.-Hyd.) * John Deeree India Pvt. Ltd. vs. Commr. of Cus. (Preventive), Amritsar: 2018 (363) ELT 509 (Tri.-Chan) * Saint Gobain Glass India Ltd. vs. Commr. of Cus. (Air), Chennai: 2014 (313) ELT 680 (Tri.-Chennai) * International Exim Agency vs. Commis....
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.... Customs Duties for import of inputs or goods, including capital goods, as per DOR notification, except items listed in Appendix 3A. (Amended vide Notification No 8/2015-20 dated 4th June, 2015) (ii) Payment of excise duties on domestic procurement of inputs or goods, including capital goods as per DOR notification. (iii) Payment of service tax on procurement of services as per DOR notification. (iv) Payment of Customs Duty and fee as per paragraph 3.18 of this Policy. Merchandise Exports from India Scheme (MEIS) 3.03 Objective: Objective of Merchandise Exports from India Scheme (MEIS) is to offset infrastructural inefficiencies and associated costs involved in export of goods/products, which are produced/manufactured in India, especially those having high export intensity, employment potential and thereby enhancing India's export competitiveness. 3.04 Entitlement under MEIS: Exports of notified goods/products with ITC[HS] code, to notified markets as listed in Appendix 3B, shall be rewarded under MEIS. Appendix 3B also lists the rate(s) of rewards on various notified products [ITC (HS) code wise]. The basis of calculation of reward woul....
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.... 3.13 Special Provisions: (a) Government reserves the right in public interest, to specify export products or services or markets, which shall not be eligible for computation of entitlement of duty credit scrip. (b) Government reserves the right to impose restriction / change the rate/ceiling on Duty Credit Scrip under this chapter. (c) Government may also notify goods in Appendix 3A which shall not be allowed for debiting through Duty Credit Scrips in case of import. (d) Government may prescribe value cap of any kind for a product(s) or limit total reward per IEC holder under this chapter at any time. Common Provisions for Exports from India Schemes (MEIS and SEIS) 3.14 Transitional Arrangement: For the goods exported or services rendered up to the date of notification of this Policy, which were otherwise eligible for issuance of scrips under erstwhile Chapter 3 of the earlier Foreign Trade Policy(ies) and scrip is applied / issued on or after notification of this Policy against such export of goods or services rendered, the then prevailing policy and procedure regarding eligibility, entitlement, transferability, usage of scrip and a....
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....ted the goods by classifying them under Chapter Heading 03031900 and the same was accepted by the Customs at the time of export. The investigations began only when the Public Notice which is reproduced below was issued deleting 42 items from the benefit of the MEIS scheme. One of the items was the item classifiable under CTH 3038999 which states "Other Excl. Edible Fish maws and Shark fins" as seen from Sl.No.56 of the Public Notice reproduced below. Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Public Notice No. 27 /2015-2020 New Delhi, dated: July 14, 2015 Subject: Merchandise Exports from India Scheme (MEIS)-Additions/amendments in Table 1 (containing list of country groups) and Table 2 [containing ITC (HS) code wise list of products with reward rates] of Appendix 3B In exercise of powers conferred under paragraph 2.04 of the Foreign Trade Policy 2015-2020, the Director General of Foreign Trade hereby makes the following additions/amendments in Table 1 and Table 2 of Appendix 3B notified through Annexure to Public Notice No.2 dated April 1, 2015 with immediate effect: I-Amend....
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....the issuance of the Public Notice dated 14.07.2015 cannot be detrimental to the interest of the appellant who had legally claimed the benefits of MEIS as per the approved shipping bills especially when the description of the product remains the same. 9. One of the items deleted by the above Public Notice No. 27/2015 is not Leather Jacket Fish but other Excl. Edible Fish maws and Shark fins falling under CTH 03038999 and till then the same Leather Jacket Fish was being exported under Chapter Heading 03031900 and based on these exports, the scrips were issued by DGFT. As per para 3.19 reproduced above the DGFT has a Risk Management System in place where on random basis, 10% of cases may be selected by each Regional Authority where scrips have already been issued, under each scheme for verification of the genuineness of the benefits being claimed and a time frame of 3 years from the date of issue of the scrip has also been specified to examine the correctness of the claims made and availed. In the instant case, we do not find any such verification done by the DGFT or found any irregularity with regard to the documents filed before the authorities concerned for the benefits of MEIS,....
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....ired to be honoured as legally valid instruments having been issued by the competent authority. When the scrips are found to be legally valid in the hands of the importers; how can the same scrips be invalid and illegal in the hands of the exporter who has obtained them based on approved shipping bills by the authorities concerned? Moreover there is no evidence placed on record that they had availed the MEIS benefit by changing the classification only after the Public Notice is issued. In fact, it is admitted by the Commissioner that the appellant had been classifying the product under CTH 03031900. As seen above, the CTH 03038999 has been deleted for the items specified therein and not Leather Jacket Fish specifically. The Department cannot by reclassifying the product under CTH 03038999 and then allege mis-classification and mis-representation of facts before DGFT in order to avail MEIS benefit. It is also an admitted fact that this CTH was again reintroduced for the benefit of MEIS and therefore, denying the benefit for the interregnum period is not valid for the reasons discussed above. 11. It is also pertinent to mention that the Seafood Exporters Association of India vi....
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....ssued under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), 4 [or duty credit issued under Section 51B, with respect to] a reward or incentive scheme or duty exemption scheme or duty remission scheme or such other scheme bestowing financial or fiscal benefits, which may be utilised under the provisions of this Act or the rules made or notifications issued thereunder. Explanation 2 - The provisions of this sub-section shall apply to any utilisation of instrument so obtained by the person referred to in this sub-section on or after the date on which the Finance Bill, 2012 receives the assent of the President, whether or not such instrument is issued to him prior to the date of the assent. (2) Where the duty becomes recoverable in accordance with the provisions of sub-section (1), the person from whom such duty is to be recovered, shall, in addition to such duty, be liable to pay interest at the rate fixed by the Central Government under Section 28AA and the amount of such interest shall be calculated for the period beginning from the date of utilisation of the instrument till the date of recovery of such duty. 13. As seen from the above pro....
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.... intended by the appellant for such a use. Moreover, looking to the Heading 3702 and its sub-heading, it does not appear that such goods were intended to be covered by sub-heading 3702.90. As regards the claim for exemption in payment of countervailing duty the appellant had stated that it was entitled to the benefit under Notification No. 50/88-C.E. The declaration made by the appellant has been found to be wrong by the Collector and CEGAT on the ground that there was a separate exemption notification in respect of jumbo rolls for Cinematographic Films. While dealing with such a claim in respect of payment of customs duty we have already observed that the declaration was in the nature of a claim made on the basis of the belief entertained by the appellant and therefore, cannot be said to be a misdeclaration as contemplated by Section 111(m) of the Customs Act. As the appellant had given full and correct particulars as regards the nature and size of the goods, it is difficult to believe that it had referred to the wrong exemption notification with any dishonest intention of evading proper payment of countervailing duty. 23. We, therefore, hold that the appellant had not mi....