TaxTMI 
TaxTMI 
2024 (8) TMI 1352
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.... C/85283/2020 and C/85284/2020 have been filed by Shri Hemant Bohra and Shri Vimal Bohra, Directors of the appellant company respectively (herein after, all referred together as 'the appellants'), against imposition of penalty, all the three appeals assailing the Order-in-Original No.49/201920/Commr/NS-III/CAC/JNCH dated 01.11.2019 (herein after, for short, referred to as 'the impugned order') passed by the Commissioner of Customs, NS-III, JNCH, Nhava Sheva (herein after, referred to for short, as 'the original authority'). As all the four appeals relate to a common issue of payment of anti-subsidy/ Countervailing Duty (CVD) imposed on the import of stainless steel coils and plates from China under Section 9 of the Customs Tariff Act, 1975, vide Notification No.18/2015-Customs dated 01.04.2015, as amended and consequent to the confirmation of demand proposed in the Show Cause Notice, the appellant had filed for the claim for amendment of the shipping bills under Section 149 of the Customs Act, 1962 and permission for procedural relaxation under Drawback Rules, 2007, all the four appeals have been taken together for disposal of the same. 2.1. Briefly stated, the issue involved in....
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....gainst payment of CVD along with interest made by them vide challan dated 23.10.2018. The said application dated 16.11.2018 was submitted to the jurisdictional Commissioner of Customs, along with requisite documents with a request for condonation of delay and the same was duly acknowledged by the Drawback Department of JNCH Customs on 16.11.2018. 2.2 The jurisdictional Commissioner of Customs had examined the requests made by the appellants vide their letter dated 16.11.2018 for fixation of Brad rate of duty drawback and for exemption from the requirements of Rule 13(1)(a) of the Drawback Rules, 2017, duly submitted by the appellants with requisite enclosures. In disposing these cases he had decided the issues and informed the appellant vide letter dated 19.04.2022; wherein, it was stated that the learned Commissioner of Customs, JNCH, Nhava Sheva-II had denied grant of permission for giving exemption from compliance of Rule 13(1)(a) ibid in terms of the proviso appended to such Rule and also denied for accepting the request for amendment of shipping bills as sought by the appellants. Feeling aggrieved with the above order/decision communicated through impugned letter date....
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....een communicated to you vide this office letter of F. No. S/6-Gen-03/2380/2021-22 CEAC dated 21.02.2022. 7. As regards your request as at 'B' above it is observed that the Proviso to Rule 13(1)(a) of the Drawback Rules, provides that the Commissioner of Customs can exempt an exporter from the provisions of Rule 13(1)(a) if satisfied the exporter failed to comply with the provisions of the said the clause due to reasons beyond his control. In the instant case, it is observed that you chose not to discharge applicable CVD at the time of the relevant imports. It was only after an investigation was initiated by the Directorate of Revenue Intelligence and a Show Cause Notice dated 10.08.2018 was issued for the recovery thereof, that the applicable duty and interest was deposited on 23.10.2018. Given the stated circumstances it is found that there is nothing on record to indicate that you failed to comply with the provisions of clause 13(1)(a) of the Drawback Rules, 2017 due to reasons beyond your control. Consequently, exemption from the compliance of Rule 13(1)(a) of the Drawback Rules in terms of the proviso thereto cannot be permitted in this case. 8. Th....
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....Limited - 2003 (156) E.L.T. 841 (Cal.) 4. Learned Authorised Representative (AR) reiterated the findings of the Commissioner of Customs in the Letters dated 21.02.2022 and 19.04.2022. He further submitted that as the appellants have not filed the amendment request within the prescribed time as mentioned in the Circular No. 36/2010-Customs dated 23.09.2010 and as they could not provide complete details for considering the request under Rule 13(1)(a) of the Drawback Rules, 2017, he claimed that the impugned order is sustainable. 5. Heard both sides and perused the records of the case. We have also considered the additional written submissions given in the form of paper books by learned Advocate for the appellants as well as Authorised Representative for the Revenue. 6. The issues involved in these appeals before us are herein below: (i) Whether import of stainless steel coils and plates from China in eight impugned B/Es all dated 12.10.2017 are liable for payment of Countervailing Duty (CVD) imposed under Section 9 of the Customs Tariff Act, 1975 or whether such imports under Advance Authorization Licenses are eligible for CVD exemption vide Notification....
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....007 for proper consideration and for appropriate decision on payment of CVD and consequent confirmation of the adjudged demands. The relevant provisions are extracted below: Extract of Customs Act, 1962 "Power to grant exemption from duty. Section 25. (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon..... Confiscation of improperly imported goods, etc. Section 111. The following goods brought from a place outside India shall be liable to confiscation :- .... (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; Penalty for improper importation of goods, etc. Section 112. Any p....
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....3, SUB-SECTION (i)] GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) Notification No. 18/ 2015 - Customs New Delhi, the 1st April, 2015. G.S.R. 254 (E).- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts materials imported into India against a valid Advance Authorisation issued by the Regional Authority in terms of paragraph 4.03 of the Foreign Trade Policy (hereinafter referred to as the said authorisation) from the whole of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty, safeguard duty, transitional product specific safeguard duty and anti-dumping duty leviable thereon, respectively, under sections 3, 8B, 8C and 9A of the said Customs Tariff Act, subject to the following conditions, namely :- (i) that the said authorisation is produced before the proper office....
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....der sub-sections (1), (3) and (5) of section 3,integrated tax leviable thereon under sub-section (7)of section 3, goods and services tax compensation cess leviable thereon under sub-section (9) of section 3,safeguard duty leviable thereon under section 8B, countervailing duty leviable thereon under section 9 and antidumping duty leviable thereon under section 9A"shall be substituted......" "CIRCULAR NO. 36/2010-CUSTOMS F.No.609/121/2009-DBK Government of India Ministry of Finance Department of Revenue Central Board of Excise & Custom ***** New Delhi, the 23^rd September, 2010 To All Chief Commissioners of Customs/Central Excise/Customs &Central Excise. All Commissioners of Customs/Customs (P)/Customs &Central Excise /Central Excise. All Director Generals of CBEC, Chief Departmental Representative of Customs Excise & Service Tax Appellate Tribunal. Si....
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.... in existence at the time the goods were exported, that the goods were eligible for the export promotion scheme to which conversion has been requested. Conversion of shipping bills shall also be subject to conditions as may be specified by the DGFT/MOC. The conversion may be allowed subject to the following further conditions: a) The request for conversion is made by the exporter within three months from the date of the Let Export Order (LEO). b) On the basis of available export documents etc., the fact of use of inputs is satisfactorily proved in the resultant export product. c) The examination report and other endorsements made on the shipping bill/export documents prove the fact of export and the export product is clearly covered under relevant SION and or DEPB/Drawback Schedule as the case may be. d) On the basis of S/Bill/export documents, the exporter has fulfilled all conditions of the export promotion scheme to which he is seeking conversion. e) The exporter has not availed benefit of the export promotion scheme under which the goods were exported and no fraud/ misdeclaration /manipulation has been n....
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....of 'Flat rolled products of stainless steel, whether hot rolled or cold rolled of all grades/series; whether or not in plates, sheets, or in coil form or in any shape, of any width, of thickness 1.2 mm to 10.5 mm in case of hot rolled coils; 3 mm to 105 mm in case of hot rolled plates & sheets; and up to 6.75 mm in case of cold rolled flat products' falling under CTH 7219 or 7220. Therefore, it could be concluded that there was a levy of CVD in force in terms of the said notification dated 07.09.2017. However, such levy was exempted only after the issuance of Notification No.79/2017-Customs dated 13.10.2017. Inasmuch as the impugned goods were imported by the appellants during the period 07.09.2017 to 12.10.2017, the duty exemption brought into effect by Notification No.79/2017-Customs dated 13.10.2017, cannot apply retrospectively when such a provision has not been exercised by the Government. In view of the above legal position and in terms of Section 159A ibid which provide that the effect of amendment do not revive anything that was not in force or existing at the time at which the amendment takes effect, we are of the considered view that import of stainless steel coils and pl....
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.....09.2017 vide Notification No. 01/ 2017-Customs (CVD) dated 07.09.2017 on the impugned imported goods and till it was ultimately exempted by issue of amending notification No.79/2017-Customs dated 13.10.2017, the Central Government and the departmental authorities are aware of the issue and have also been specifically made aware of the difficulty caused due to such levy and the solution thereof, by various representations made by the appellants importer. There is no act of any element of any collusion or any wilful mis-statement or suppression of facts on the part of the appellants importer as concluded in the impugned order dated 01.11.2019 justifying the imposition of penalty under Section 112(a) ibid. 8.2 From plain reading of the legal provisions under Section 112(a) of the Customs Act, 1962, it is clear that a penalty is imposed, if it established that in relation to 'goods' which are liable to confiscation under Section 111 ibid, and that such penalty is liable to be imposed on 'any person'. It is not the case that in the factual matrix of the present case, that the impugned imported goods were imported by the appellants involving any prohibition imposed under Custom....
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....considered view that imposition of penalty under Section 114AA ibid is without any evidence or grounds and hence the impugned order is not legally sustainable in this aspect also. 8.4 Further, in the case of Sachin Kshirsagar Vs. Commissioner of Customs (Import-I), Mumbai - (2022) 1 Centax 199 (Tri.-Bom) the Co-ordinate Bench of this Tribunal have held that the personal penalty imposed on the Director under Section 114AA of the Customs Act, 1962 is not sustainable and set aside the order. The relevant paragraphs of the said order is extracted and given below: "5. The enhancement of value of the impugned vessel is set aside in accordance with our findings supra. The sole issue that remains is the choice of the appropriate classification. The controversy is contentious and the alternative classification proposed by customs authorities is based upon reliance on technical features to distinguish it from a capability inherent in all vessels that put out to sea in terms of subordination to its principal function. With that complexity to be resolved, there is no scope for indicting the individuals in these proceedings for deliberate mis-declaration. That the benefit of a....
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....eration while fixing All Industry Rates of Duty Drawback, the Drawback of such Countervailing Duties can be claimed under an application for Brand Rate under Rule 6 or Rule 7 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 and/or the Customs and Central Excise Duties Drawback Rules, 2017, as the case may be. This would necessarily mean that drawback shall be admissible only where the inputs that suffered Countervailing Duties were actually used in the goods exported as confirmed by the verification conducted for fixation of Brand Rate. 3. Where imported goods subject to Countervailing Duties are exported out of the country as such, then the Drawback payable under Section 74 of the Customs Act, 1962 would also include the incidence of Countervailing Duties as part of total duties paid, subject to fulfilment of other conditions. 4. Suitable Public Notice and Standing Order should be issued for guidance of the trade and officers. Yours faithfully, (Dipin Singla) OSD (Drawback) On perusal of the above CBEC instructions, it is established that with respect to Countervailing Duties (CVD) which are leviable under S....
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....pugned B/Es without payment of CVD upon claim for exemption and have not objected to such claim under Section 17 of the Customs Act, 1962 and when the details for claim for drawback have been submitted as per the circulars issued subsequent to the clearance of imported goods, and that the details of export/shipping bills filed by the appellants during 26.12.2017 to 27.02.2018 have been duly verified by the DGFT authorities. In view of the above we are of the considered view, that the application for claim of drawback submitted by the appellants is eligible to be considered under Customs and Central Excise Duties Drawback Rules, 2017. 9.5 As regards the rejection of the request for amendment of shipping bills under Section 149 of the Customs Act, 1962, on the ground that there is delay of more than five months in filing the application, we find that the legal provisions do not prescribe any specific time limit and the time limit prescribed under Circular No.36/2010-Customs dated 23.09.2010 has been struck down by a number of judgements of Hon'ble High Courts and Hon'ble Supreme Court as discussed in the following paragraphs. 9.6 The Hon'ble High Court of Madras has held ....
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....uble and the ship was in the high seas and the goods in question were on board, the export was complete. The fact that subsequently the ship decided to sail back into the territorial water of India was of no consequence. In that case, the goods did not land in any place because of the defect in the ship but export under the Drawback Rules is completed and the title of the goods passed on to the purchaser. 31. The definition of export under the present Drawback Rules of 1995 is the same. 32. Relying on the said judgment, the learned Counsel submitted that since in such a case also the Court held that the export was complete and the Company doing the export is entitled to benefit under Section 75 of the Customs Act, so in this case in which the export was admittedly completed and the goods reached the other country and the foreign exchange had come to India, the benefit of drawback claim cannot be denied to the respondents. 33. The learned Counsel further relied on another judgment in the case of Mangalore Chemicals & Fertilizers Ltd. v. Deputy Commissioner, reported in 1991 (55) E.L.T. 437 (S.C.). In that case, what come up for consideration for the ....