TaxTMI 
TaxTMI 
2024 (10) TMI 908
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....gible exemption benefit of Notification No. 11/97-Cus dated 01.03.1997, entry on S.No. 78. The officers from SIIB Brach of ICD TKD, Commissionerate acted upon the said intelligence and found that M/s. Navshakti Industreis Pvt. Ltd. had imported 26 consignments vide following 26 numbers of Bills of Entry Declaring the goods as printing paper, uncoated in reels having not less than 70% mechanical wood pulp by weight of total fiber content. : S.No. Bill of Entry No. Date 1 108100 02.08.1997 2 109316 29.08.1997 3 109517 19.09.1997 4 10958 04.09.1997 5 110452 19.09.1997 6 110474 20.09.1997 7 111345 08.10.1997 8 111361 09.10.1997 9 112300 31.10.1997 10 112781 11.11.1997 11 113110 17.11.1997 12 113348 20.11.1997 13 113349 20.11.1997 14 113699 27.11.1997 15 114160 03.12.1997 16 114182 28.08.1997 17 114260 08.12.1997 18 114270 08.12.1997 19 114380 10.12.1997 20 113341 20.11.1997 21 107739 25.07.1997 22 107940 30.07.1997 23 108391 11.08.1997 24 108602 14.08.1997 25 ....
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....ion of the description of newsprint in connivance with their indentor to circumvent licensing restriction. The statement of Shri Rajneesh Goel and the supplier as well as the intendors were also recorded. Meanwhile the test report for remaining 25 Bills of Entry was received from CISL, Saharanpur vide letter dated 11.09.1998 reporting that the samples in respect of all the above 26 Bills of Entry confirmed to the parameters of newsprint as provided in note 3 of Chapter 48 of the Customs Tariff Act, 1975. 1.5 Based thereupon, department formed an opinion that the goods imported vide 26 Bills of Entry were 'Newsprint' (restricted goods which were allowed to be imported only under a specific importer license). Hence, vide Show Cause Notice No. 02/97 dated 23.07.2002 respondent, M/s. Navshakti Industries Pvt. Ltd. has been alleged to have imported the newsprint by mis-declaring the same as printing paper by paying nil rate of duty as contrary to customs duty at the rate of 10% Basic Customs Duty (BCD), thereby evading the customs differential duty amounting to Rs.31,77,162/-. The said amount of duty was accordingly proposed to be recovered along with the interest. The goods imported....
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.... to douse the department of its revenue, is nothing but an act of suppression on part of the appellant committed with a mala fide intent to evade the requisite customs duty. Hence extended period in terms of Section 28(4) of the Customs Act, 1962 (herein after referred as the Act) has rightly been invoked in the facts of the present case, while issuing the impugned show cause notice. 3.2 It is further impressed upon that the impugned 26 Bills of Entry, the assessment thereof was never finalized. There is no evidence to the said effect except that the Commissioner of Customs has relied upon rejected test bonds which cannot be called as the proof of final assessment. Not only this, the adjudicating authority below has relied upon the test reports of CRCL, Pusa, Delhi which were submitted by the respondent-importer and have not even been mentioned in the impugned show cause notice. The findings in the order under challenge are therefore beyond the scope of show cause notice, hence are liable to be set aside. The test reports of CRCL, Saharanpur based whereupon the show cause notie has been issued have not been discussed in the order under challenge which amount to deciding the matt....
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....ed back for the de novoadjudication. With these submissions, the order under challenge is prayed to be set aside and appeal is prayed to be allowed. 4. While rebutting these submissions, respondent-importer has mentioned that the impugned show cause notice was issued after the delay of more than 4 years since the date when consignments of the importer-respondent were intercepted in the month of August to October 1997. However, the show cause notice has been issued in the Year 2002. The department has not produced anything to justify said delay nor has produced any document on record to prove the allegations of mis-declaration. There is nothing on record to prove as to which samples were sent to M/s. CRCL, Saharanpur. No notice of drawing those samples was served upon the importer-respondent, nor the date of those being sent and tested by Saharanpur Lab was informed to the appellants. On the contrary, the goods of 26 Bills of Entry were initially detained for test check. The sample from each of the consignment were drawn sealed in presence of the respondent's representatives and were sent to testing to CRCL, Pusa, Delhi. 80% of the detained goods were provisionally released at th....
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....d counsel has also impressed upon that after getting the release order of the goods since the goods were detained for a prolonged period, the department issued the detention certificate in the matter. Respondent-importer though paid the demurrage charges however claimed the same by filing the suit for recovery before Hon'ble High Court of Delhi. The said suit was decreed in favour of the respondent-importer in March, 2002 holding department liable for paying those demurrage charges. The present show cause notice of July 2002 is an afterthought to wrongly avoid the compliance, the decreed passed by the Hon'ble High Court. Otherwise also department has not filed any document of any nature to support the findings in review order dated 26.03.2014, except the CRCL Saharanpur report which is not acceptable for want of due process of law as was required for obtaining those test reports. Adjudicating authority below has rightly observed that prior the report of CRCL Saharanpur, test reports of CRCL Pusa supporting the importers declaration was already there holding that the subject goods are 'Printing Paper'. Based whereupon the goods were finally assessed and got finally released. The com....
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.... harassing the appellant ans is an attempt to get changed the final assessment after several years. With these submissions, it is prayed that matter may not be remanded. The order of adjudicating authority below is prayed to be upheld and the appeal filed by the department is prayed to be dismissed. 5. Having heard both the sides at length, perusing the voluminous record and the voluminous written submission submitted by both the parties, we observe following to be the apparent facts, the bone of contention: (a) The impugned Order-in-Original dated 24.12.2013 as has been challenged by the department subsequent to the Review Order dated 26.03.2014 is an order passed in favour of the importer falsifying the allegations of mis-declaration and holding that the goods imported by the importer-respondent were the 'Printing Papers'. Based on the reports by CRCL, Pusa, Delhi reports, it has been held that the respondent importer has rightly availed the exemption benefit of Entry No. 78 of Notification No. 11/97-Cus. (b) We also observe that the impugned show cause notice dated 23.07.2002 has been served upon the importer alleging misdeclaration on the basis that the imported goods ....
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....2013 The impugned OIO was passed pursuant to remand, dropping the demand and penalty proposed in the SCN on the basis of test reports from CRCL, Pusa. 10. 26.03.2014 Review Order was passed by the Committee of Chief Commissioners under Section 129(D) of the Customs Act.with a prayer to remand the matter for final assessment. 11. 17.04.2014 Department filed an appeal pursuant to the said review Order dated 24.12.2013. 12. 23.02.2017 Final Order was passed by the Hon'ble Tribunal Delhi wherein the matter was again remanded to the Adjudicating authority, observing that goods have not been finally assessed. 12(a) 30/31.05.2017 An application was moved by the Appellant/Petitioner herein under Section 129(B)(2) for Rectification of mistake against the above said final order dated 23.02.2017 but was dismissed as barred by time. 13. 19.09.2017 Customs appeal was filed by the Respondent before the Hon'ble High Court Delhi challenging said order of remand. 14. 05.12.2017 The Hon'ble High Court Delhi dismissed the appeal of the Respondent on the ground of jurisdiction as the appeal was not maintainable. 15. 08.10.2018 The....
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....sed between the receipt of test reports from Central Pulp & Paper Research Institute, Saharanpur and issuance of show cause notice. The show cause notice does not mention any reason as to why such a long period was taken for issuing the show cause notice after the test reports were received and what action was taken during the intervening period. Based on above, it has been contended that the goods finally assessed and cleared cannot be re-opened for assessment on the basis of such alleged tests and test reports. Hence, the demand is time barred. Entire series of actions by officers by denying them the relevant records including test reports of CRCL, Delhi, on one pretext or the other holding that the same are not relevant or are not traceable and finally pass the order, without properly hearing the noticee shows malafide. Re-opening the finalized assessment on the basis of some alleged test reports is against the well settled position of law. 33. A perusal of the case records show that 26 consignments of papers were imported during August Dec., 1997. The representative samples were drawn from 26 consignments and sent for testing. As per show cause notice, the samples were....
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....ce dated 23.07.2002 (the one in question) was issued after the goods were already released and the Test Bonds were already cancelled. The order also recorded another submission of present respondent that since the provision assessment bonds had been cancelled upon finding that the goods were as declared, it was not open to the revenue to invoke proviso to Section 28A of the Customs Act alleging that there was any misdeclaration by the appellant. It is being pointed out that the cancellation of the bonds shows that test reports from the Customs Chemical Laboratory confirmed that the paper consignments were of printing paper. The allegation is that those reports were being suppressed. It is being pointed out that the appellant has specifically sought copies of those test reports from the customs authorities during adjudication but the request was rejected under letter dated 18.01.2006 stating that "CRCL reports are not available in the case record and also do not appear to the relied documents in the SCN". The allegation of the learned counsel is that revenue is trying to keep evidence favourable to the appellant out of the proceedings, so that demand could be confirmed. 5.6....
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....s thereby accepting finally, the classification to be printing paper and the value as declared by appellant. 5.8 Pursuant to review order dated 26.03.2014 after order, department filed an appeal which was allowed by this Tribunal vide order dated 23.02.2017. The said order has been set aside by Hon'ble Supreme Court vide order dated 08.10.2018 holding that the Tribunal has passed the order without giving opportunity of representation to the importer. The matter has been remanded back to this Tribunal giving opportunity to both parties to produce additional documents, if any. (The chronology of these orders is already tabulated above) 5.9 The subject of the said review order is, "Review of Order-in- Original No.68/RKB/CCE/NCH/2013 dated 26.12.2013". It is stated that Section 129(D) does not provide any power to review the order and in fact, the Committee of Chief Commissioners of Customs have gravely erred in passing the order dated 26.03.2014 bearing No. 01/2014 in the nature of review. The said order could only be in the nature or recommendation after satisfying to the legality or propriety of such decision. Neither the department has filed in the Appeal any record, wh....
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....imported by the respondent pre and post restriction was same. Otherwise also these statements and annexures to the show cause notice were already before the adjudicating authorities. The only additional documents are two letters sent by respondent to M/s. Anika, the indenter. The perusal reveals that the respondent has simply asked for a certificate to the effect that the imported consignment is not 'Newsprint'. In our opinion, these two letters are insufficient to prove the allegations in the show cause notice. In the light of such statements and such documents, and in the absence of any other document to falsify the test reports from CRCL, Pusa, Delhi, and further, in absence of any documents proving that the department had followed the due procedure for drawing samples, subsequently, to be sent to CPPRI, Saharanpur, we do not find any infirmity in the order under challenge. 5.12 Coming to the another contention of learned Departmental Representative where emphasis has been laid upon the ash content as the criteria for describing the nature of imported goods as has been appreciated by CPPRI, Saharanpur, we observe that the appellant has availed the exemption benefit of Entry o....
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....porter was not found at fault. Above all the test bonds as were furnished by the assessee-respondent were all cancelled by the department while releasing the goods/printing paper of CTH 4802.60. 5.15 It is also on record that Test Report of CRCL, Pusa was not provided to importer who obtained it under RTI Act. The documents reviewed under RTI have also been produced on record which include the Test Memo issued from the Office of Deputy Commissioner of Customs, ICD, Tughlakabad, Delhi to CRCL, Pusa. All the documents pertain to the period August, 2007 to December, 2007. These documents as produced by respondent shows that the consignments as were imported during August 1997 to October 1997 were all released by January, 1998 based on the test reports from CRCL, Pusa holding the imported goods to be the printing paper. Apparently the samples to CPPRL, Saharanpur were sent in Feburary, 98 vide letters of the Assistant Commissioner (Prev.) bearing no. 1654 dated 09.02.98 and another bearing no. 2049 dated 20.02.98. Though department acted on those Test Reports and released all consignments of respondent-importer in January 1998 itself. To our opinion there is no proof/bagger with the....