TaxTMI 
TaxTMI 
2025 (5) TMI 1464
X X X X Extracts X X X X
X X X X Extracts X X X X
....JEEV TANDON, MEMBER ( TECHNICAL ) Shri Fiaz Ahmed, Authorized Representative for the Revenue Shri T. Jagapathi Rao, Consultant for the Respondent ORDER Per : RAJEEV TANDON : The Revenue has filed the impugned appeals in response to which appellants have also filed Cross Objections in the matter. Vide Order Order-in-Original dated 07.04.2021, the Principal Commissioner of Customs (Port), Customs House, Kolkata confirmed collectively a differential duty amount of Rs.4,68,95,248/- along with interest in respect of imports effected by the appellant at Mumbai Air Cargo, Kolkata Port and Nava Seva Port. The ld.Commissioner also imposed penalty under section 112A on M/s. Limak-Soma Joint Venture, Hyderabad. He however did not confiscate the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The Ld.Consultant for the respondents in the matter has pleaded that at the time of import of the goods there was no post import condition stipulated in the said Notification No.84/94-CUS dated 11.11.1997. They submitted that it was subsequently amended during the year 2008 and 2014 by issuance of Notification No.24/2008-CUS dated 01.03.2008 and 22/2014-CUS dated 11.07.2014 incorporating certain post-import conditions into the parent Notification, with retrospective effect, making it applicable for goods imported prior to March 2008. As can be seen from records, the Revenue based on the amended provisions with retrospective effect issued show cause notice in respect of the aforesaid goods cleared between 2005 and 2007. After following due p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sold off. The Revenue therefore submits that the respondent did not seek any permission from appropriate authority at the time of diversion/transfer of the goods to other projects nor did they obtain any certificate from the competent authority that the goods were no longer required for the project. In short to say that the Revenue contends that the noticee having violated the condition of the said Notification would not be eligible for benefit of import of said goods at nil rate of duty. 7. Amongst the three issues raised at the time of adjudication, two of the issues regarding appropriateness of adjudicating authority and the stay granted by the hon'ble High Court of Judicature at Hyderabad, no longer survive. The only question therefor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iding over the limitation aspect. 9. We also find from record that the respondent had before the lower authority also raised the plea and relied upon sub-Section (2A) of section 25 of the Customs Act, 1962, to submit that any explanation inserted in Notification issued under sub-section (1) or sub-section (2) of section 25 of the Customs Act, 1962 after the statutory limit of one year is arbitrary and ultra vires of section 25 of the Customs Act, 1962. As the explanation was inserted with effect from 01.03.2008 by Notification No.24/2008-Cus.; dated 01.03.2008 in the Notification No.84/97-Cus,; dated 11.11.1997 issued under sub-section (1) of the section 25 of the Customs Act, 1962, i.e. after more than one year of the issue of the Notific....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... no post import condition at the time of import, the respondent upon completion of the said project utilized the imported goods for executing some approved projects and other projects. 11. The fact that no bond/bank guarantee was obtained by the department from the respondent is a very material factual contention. We find that the revenue's reliance therefore on Mediwell Hospital and Health Care Pvt.Ltd. v. Union of India (supra) and Commissioner of Customs (Import), Mumbai v. Jagdish Cancer & Research Centre (supra) would not arise for once. There are a plethora of orders of various judicial bodies to hold that when the goods are not available for confiscation, they cannot be directed to be confiscated. For the proposition we rely on the ....