TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1088
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....12/2012 dated 17.03.2012 (Sl.No.466) and declared CVD as per tariff rate and claimed exemption from levy of 4% SAD under Notification No.21/2012 dated 17.03.2012 (Sl.No.1). During the course of audit of the Bill of Entry, it was noticed that the appellant are not entitled to the benefit of exemption of 4% SAD under Notification No.21/2012 dated 17.03.2012. Accordingly, a letter was issued to the appellant for recovery of the differential duty and the appellant discharged the reassessed duty on the said Bill of Entry without protest. Later on checking of their past clearances, it was noticed that the appellant had earlier cleared FRP Pilot Boat - Yojaka Dhruv and FRP Security Boat - Yojaka Dhatri against manual Bill of Entry No.950/14.03.2012 and 951/14.03.2012 classifying the same under Customs Tariff heading 89060090 whereunder the appellant claimed exemption from BCD as per Notification No.21/2002 dated 01.03.2002, discharged 5% CVD as per tariff rate and wrongly claimed exemption of 4% SAD under Notification No.20/2006 dated 01.03.2006 (Sl.No.1). Consequently, the importer was requested to pay the short paid duty to the tune of Rs.19,23,526/- and Rs.16,82,598/- respectively agai....
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....tive of the status of the person availing such benefit. The said notification does not specify that the benefit is limited for domestic manufacturing units which have not availed cenvat credit inputs or input services; therefore denial of benefit of the said notification is incorrect. Further, their claim of reassessment of Bills of Entry was rejected on the ground that they had claimed the benefit of notification at the time of assessment of the Bills of Entry and also the duty was not paid under protest. The said finding of the Department is incorrect. In support, they referred to the judgment in the case of CC, Chennai Vs. Texworth International [2007(4) TMI 554 (Tri. Chennai) and CC, Chennai Vs. Kankai Imports [2007(2) TMI 559 (Tri. Chennai)]. She has further submitted that the adjudicating authority has confirmed the demand without disposing their application for reassessment of Bills of Entry and redetermination of the import duties as requested under the provision of Section 149 read with Section 154 of the Customs Act, 962. She has submitted that if there are two notifications in force, the notification beneficial to the assessee could be opted as held by the Hon'ble Suprem....
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....e amount of expenses incurred on the crew in towing the impugned goods from Dubai to Mangalore is bad in law. Further, assailing the penalty of Rs.37,86,633/- imposed on the appellant, she has submitted that Rs.37,33,505/- was attributable to the wrong availment of benefit under Notification No.20/2006-Cus. dated 01.03.2006 and Rs.53,128/- is attributable to freight amount not paid by the appellant. Therefore, the penalty of Rs.53,128/- imposed by the adjudicating authority and upheld by the learned Commissioner(Appeals) under Section 114A of the Customs Act, 1962 cannot be sustained. Also, she has submitted that the penalty of Rs.1 lakh each imposed on Shri Jagadish Boloor and Shri Taranath Vasu Kotian under Section 114AA of the Customs Act alleging wrong declaration of freight in towing the FRP boats also cannot be sustained. 4. Per contra, the learned AR for the Revenue reiterating the findings of the learned Commissioner(Appeals) has submitted that the show-cause notice was issued within the normal period of limitation and the appellant has paid Rs.5 lakhs at the time of adjudication proceedings. The appellant has initially not contested denial of exemption of 4% Additional Du....
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.... (i) appellant are entitled for the alternate benefit of Notification No.1/2011-CE dated 01.03.2011; (ii) loading the excess freight amount and demanding differential duty of Rs.53,128/- is correct and (iii) imposition of penalty on the appellants is justified. 7. Undisputed facts are that during the course of assessment of their Bill of Entry No.2/2012-13 dated 30.11.2012, it came to the notice of the Department that the appellant had wrongly availed benefit of 4% SAD under Notification No.21/2012 dated 17.03.2012 since the imported goods were not exempted from CVD. The appellant complied with the said objection of the Department and discharged appropriate duty without any murmur. The Department, for the past clearances against Bills of Entry No.950 dated 14.03.2012 and No.951 dated 14.03.2012 raised a query for recovery of duty short paid Rs.19,23,526/- and Rs.16,82,598/-by wrongly availing the benefit of exemption Notification No.20/2006 dated 01.03.2006. The appellant disputed the quantum of the said duty submitting that they are entitled to the benefit of alternate Notification No.01/2012-CE dated 01.03.2011, for which they addressed a letter to the Department to reassess the....
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....ase of Thermax Private Ltd. Vs. Collector [1992(61) ELT 352 (SC)], observed as follows:- 7. We are of the opinion that the aforesaid reasoning is no longer good law after the judgment of this Court in 'Thermax Private Limited v. Collector of Customs (Bombay), New Customs House' [1992 (4) SCC 440 =1992 (61) E.L.T. 352 (S.C.)] which was affirmed by the Constitution Bench in the case of 'Hyderabad Industries Limited v. Union of India' [1999 (5) SCC 15 = 1999 (108) E.L.T. 321 (S.C.)]. In a recent judgment pronounced by this very Bench in the case of 'AIDEK Tourism Services Private Limited v. Commissioner of Customs, New Delhi' [Civil Appeal No. 2616 of 2001 - 2015 (318) E.L.T. 3 (S.C.)], the principle which was laid down in Thermax Private Limited and Hyderabad Industries Limited was summarised in the following manner :- "15. The ratio of the aforesaid judgment in Thermax Private Limited (supra) was relied upon by this Court in Hyderabad Industries Ltd. (supra) while interpreting Section 3(1) of the Tariff Act itself; albeit in somewhat different context. However, the manner in which the issue was dealt with lends support to the case of the assessee herein. In that case, the Court ....
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....e applying the Notification No.30/2004-CE dated 09.07.2004, held that the situations involved in the said notification is totally different from the circumstances of the notification dealt by the Hon'ble Supreme Court. Consequently, interpreting the condition of Notification No.30/2004, the Hon'ble Madras High Court held that the assessee therein is not entitled to the benefit of the said notification. Thus, the said judgment is not applicable to the facts of the present case. 11. As far as the confirmation of duty of Rs.53,128/- with interest is concerned, we find that the appellant has paid an amount of AED 95000 valued to Rs.13,87,000/-) towards freight but declared to the Department only Rs.8,34,270/-. The differential amount has been claimed by the appellant as expenses towards the crew members who towed the boats from Dubai to Mangalore. However, they did not submit any evidence in support of their claim before the lower authorities nor before this Tribunal. In absence of any such evidence, we do not find any infirmity in ascertaining the correct amount of freight as Rs.13,87,000/- which is equivocally admitted by Shri Jagadish Boloor and Shri Taranath Vasu Kotian in their r....