TaxTMI 
TaxTMI 
2025 (3) TMI 76
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....nd for the remaining 63 Bills of Entry, they availed concession rate of duty under Claus IC of the said Notification. 3. Under the Notification No:04/2006 the importer of cement is eligible for concession rate of duty on complying the following conditions:- a) The concessional rate of duty under Clause 1A(i) is available to the Cement whose Retail Sale Price does not exceed Rs. 190/- per 56 Kg bag. b) The concessional rate of duty under Clause IA(ii) is available to the White Cement whose Retail Sale Price exceeds Rs. 190/- per 50 Kg bag. c) The concessional rate of CVD under Clause IB of the Notification No.4/2007 dated 01.03.2007 is available to the Cement which is purchased from a mini cement plant, other than those cleared in packaged form which is having a manufacturing capacity of i) A factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory in a financial year shall not exceed 1,09,500 tonnes; or ii) A factory using rotary kiln with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the total clearances of cemen....
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....rt of cement in bags of 50 kgs retail packing and not in bulk as envisaged in the concession notification. Also admitting that he did not declare the purpose for which the cement was imported and was not aware of the true meaning of the concession under two different clauses IA(i) and IC of the Notification, sought for extension of the concession rate of duty under Clause 1A(ii) of the Notification and willing to pay the differential duty along with the appropriate interest. 6. After following due process of laws, Order-in-Original No: 01/2015 dated 16.01.2015 was passed by the Adjudicating Authority rejecting the declaration of RSP of Rs. 190/- per 50 kg bags and refixed the price as per the contemporaneous RSP. The CVD concession claimed was rejected. Ordered payment of duty under Section 28(4) of the Customs Act, directing to pay the differential duty of Rs. 35,14,162/- along with appropriate interest under Section 28AA (1) and 28AA (2) of the Customs Act. Further, held that the importer with the intention to evade payment of duty under the 72 Bills of Entry had mis-declared the RSP, hence 17540 MT of Cement worth Rs. 5,37,84,504/- to be confiscate under Section 111 (m) and Sec....
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....mporter, the order in original is not sustainable. After three years, the department cannot open the case alleging duty concession wrongly bestowed. 10. The CESTAT allowed the Appeal and set aside the order in original passed by the adjudicating authority in the common Final Order passed on 31.01.2018. 11. Being aggrieved, the Customs Department had filed the C.M.A(MD)No.398 of 2019 raising the following question of law: - "Whether the CESTAT is correct in allowing the benefit of concessional rate of Counter Veiling Duty (CVD) on the imports wherein the importers have failed to fulfill the conditions stipulated in the Notification No.4/2006-CE as amended and also when such imports by the importers are in contrary to the conditions stipulated in the Notification No.4/2006-CE as amended?" 12. According to the Customs Department, the import of cement by M/s A-1, Hollow Bricks and Construction was in violation of the Notification terms. The violations are admitted by the importer in his reply to show cause notice. The delay in initiating action cannot be a reason for exonerating the violator. The provision of extended limitation is applicable in case of misdeclaration for evading ....
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.... portion of the CESTAT order is extracted below:- "6. On the first issue we have perused the sample invoice and import documents. It is clear that Bills of Entry filed along with invoices contain details of goods imported. The exporters details with evidences linking up with high sea sale invoices further linked up with Bill of Entry. Hence, the import from the designated exporter who is declared as manufacturer of cement based on the details in the invoices cannot be disputed. No contrary evidence that purchase is from a trader has also been submitted by the Revenue. 7. Regarding the second issue of actual user condition for the imported cement, we note that the appellants all along claimed fulfilment of such condition. Though same is post-importation, actual use based condition, the assessments were finalized accepting the claim of the appellant for such concessional duty. It would appear that officers had opportunity to satisfy themselves about the actual user condition. In case of possible doubt on such fulfilment, the requirement is to resort to provisional assessment and call for post-importation actual user confirmation. This was not done in the present case will show th....