TaxTMI 
TaxTMI 
2025 (3) TMI 76
X X X X Extracts X X X X
X X X X Extracts X X X X
....(i) of the Notification No: 04/2006 C.E. Dated 01/03/2006 as amended and 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 install....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(i) of the Notification No: 4/2006 for 09 Bills of entry, and under Clause IC for the remaining 63 Bills of Entry. In his statement, he admitted the import 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s cannot be taken into consideration to collect differential duty or to collect penalty or order confiscation. When there was no intentional suppression by the importer, 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 not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he factual aspects of the individual case. The reasoning given by CESTAT to interefere the well considered order of the Adjudicating Authority of the face of it suffers patent infirmity. 17. For easy reference the operative 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r name in the bills of entry may be a condition required for import but not for concessional rate of duty. To avail concession rate of duty, it should be purchased directly from the manufacturer who had satisfied the conditions mentioned in the Notification. Mere clearance of goods to be imported by the Examiner of Customs Department will not be a ground to set aside the order of withdrawal of duty concession when it is found later there is suppression and mis-declaration knowingly. 20. The order of CESTAT by ignoring the admission of the importer that the cement imported through High Sea Sales was used for manufacturing Hallow Bricks and sold in the local market had held that no such condition was put to the importer at the time of assessment and clearance. This observation bristles with non application of mind. The end use of the cement imported is one of the condition for granting concession rate of duty as per Clause I C. In fact the importer has to file a end use declaration at the time of clearance and violation of the declaration will obviously come to knowledge of the Revenue only after the misuse of the goods imported for a purpose other than for which it was allowed to....