TaxTMI 
TaxTMI 
2025 (8) TMI 656
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....tead on Retail Sale Price (RSP) basis in violation of the proviso to sub section (2) of section 3 of the Customs Tariff Act, 1975 read with section 4A of the Central Excise Act, 1944 read with entry No. 108 of the Notification NO. 49/2008- C.E (N.T.) dated 24.12.2008. Accordingly department investigated the issue. It was found that M/s SGCSPL imported and sold CNG kit components which fall in the category of "Parts, components and assemblies of automobiles". These items were imported in numbers and in packed form. As per the legal position, Retail Sale Price on such items was required to be declared and CVD on such items was payable on the basis of Retail Sale Price and not on transaction value as had been paid by M/s SGCSPL. Department all....
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....mitted that onus of assessment of duty was upon department, that the case relates to 2006-07 to 2008-09 i.e. prior to 08.04.2011, the date when the scheme of self-assessment was introduced. Therefore, the burden of assessment of duty was on Department only, neither on Importer nor on appellant in terms of section 17. Following submissions have also been made by the learned Consultant: - • Goods were examined and then cleared after due assessment by officers • Goods have not been held liable to confiscation • There are in-built contradiction in O-I-A • RSP was not declared on the packages hence no need to made RSP the basis for assessment • Appellant had not abetted in the alle....
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.... However, the importer firm did not disclose at the time of imports regarding the mandate of RSP on their goods as required under Section 46 of the Act. Thus there is failure on part of appellant in disclosing all the essential information about the imports. Hence, the elements of suppression of material facts for evading the payment of appropriate Customs duty do exist in the instant case. The issue of short payment of Customs duty came to the fore only after investigations were conducted. In view of the factual position, it is not the case that the Appellant had disclosed the material facts regarding the imports at the time of imports by filing the referred Bills of Entry, hence, the demand in question is liable to be confirmed for the st....
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....ance of CNG kit and components imported by M/s Shrimanker Gas Company Services Pvt. Ltd. The quantum of CVD was assessed based on transaction value. I observe that without raising any objection about Retail Sale Price to be tha basis for said assessment, the imported goods were allowed clearance. It is years thereafter, the department received an intelligence that the said importing company has evaded the payment of Customs duty. It got revealed that the CVD was to be assessed on Retail Sale Price (RSP) instead of it being on transaction value. 6. In the light of these facts the question to be decided is: "Whether the appellant/ CHA had the intention or the knowledge about quantum of Countervailing Duty (CVD) declared in Bills o....
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...., as far as the appellant CHA is concerned, I do not find any evidence on record about any personal involvement of CHA in the assessment of the goods imported by M/sShrimanker Gas Company Services Pvt. Ltd. In absence of any evidence reflecting mens rea of appellant CHA in the alleged activity, the imposition of penalty on CHA is not sustainable. Otherwise also the present case is of difference of opinion and is a matter of pure interpretation of law. The penalty cannot be imposed in such circumstances. Nor the goods can be held liable for confiscation I draw my support from the following decision: - • 2005 (190) E.L.T. 352 (Tri. - Mumbai) - FIBRE FOILS LTD Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV • 2008 (2....
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.... CHA cannot be imposed. 11. In the present appeal, I do not find any iota of evidence about alleged suppression of facts on part of the appellant. There is also no evidence about mens rea with the appellant CHA to intentionally conceal the RSP. It was the burden of department which remains undischarged. Hence, I hold that there is no apparent suppression of fact. Resultantly, The show cause notice itself gets hit by bar of Limitation. Proposal of such show cause notice to impose penalty on appellant is not sustainable. Hon'ble Supreme Court in the matter of Pushpam Pharmaceuticals Company Vs. Collector of C. Ex., Bombay- 1995 (78) ELT 401 (S.C.) it was held that where facts were known, extended period of five years is not applicable.....