TaxTMI 
TaxTMI 
2025 (10) TMI 1205
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....he Standard Input Output Norms (SION) fixed by DGFT for the product group "Plastic Products". 4. During the course of audit of the accounts of the appellant by officers of Central Excise, it was noticed that the Appellant imported the item "ENABLE 2005-CE" by mis-declaring the same as "LDPE/LLDPE" without payment of duty by availing the benefit of notification No. 52/2003-Cus dated 31.03.2003 read with Foreign Trade Policy 2004-09 and 200914. The Appellant had not obtained any initial approval for procurement of "ENABLE 2005-CE", which is MPE resins (Metallocene Polyethylene Resins) and not LDPE/LLDPE. They had failed to show the item in any of the statutory returns furnished to the Central Excise Range. 5.1 The Show Cause Notice No. 14/AC/CE/2013 dated 19.11.2013 was issued to the Appellant wherein it was proposed to: (a) recover the Customs duty of Rs.3,69,229/- (Rupees Three Lakhs Sixty-Nine Thousand Two Hundred and Twenty-Nine only) involved on the improperly imported 22,000 kg. of ENABLE-2005-CE valued at Rs.17,63,186/- without initial approval by DGFT and mis-declaring as LDPE/LLDPE, by invoking the extended period of limitation, under the provisions of Section....
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....eading Notes, like LDPE and LLDPE, the ENABLE-2005-CE-mPE resin is also chemically modified polymer though is different from LDPE. 7. The Appellant have preferred the present appeal assailing the impugned order passed by the Lower Appellate Authority (hereinafter referred to as LAA). 8.1 The Ld. Advocate Mr. S. Sathish Chandrasekaran appeared and argued for the Appellant and submitted that the Appellant are engaged in the manufacture of PP Bags / Strips / Yarn, PP Woven Fabrics, HDPE / PP Woven Bags / Sacks / FIBC bags etc. from out of imported raw materials under Notification No. 52 of 2003-Cus dated 31.03.2003. The DGFT allowed the duty free imports / procurement of raw materials for the manufacture of the aforesaid items and fixed the SION against each item. He further submitted that it is not in dispute that the Appellant had imported Enable 20-05-CE for the manufacture of the above said items. In other words, it is not the case of the revenue that the said raw materials have not been used for the manufacture of the above said items. The Appellant have complied with all the conditions enumerated in the notification No. 52 of 2003. The impugned order has not disputed the s....
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....at there was no suppression of fact by the Appellant as they had kept the department informed of all the happenings then and there. He relied upon the decisions in the following case to submit that it is the settled law that in the event of goods physically not available for confiscation, the question of confiscation or imposing fine in lieu of the same does not arise: i. Commissioner of C.Ex. & S.T., Surat vs. Blue Sky Synthetics - 2014 (300) ELT 95 (Ahd) ii. Deekay Exports vs. Commissioner of Customs, New Delhi - 2012 (285) ELT 109 iii. Miltech Industries Pvt. Ltd vs. Commissioner of C.Ex., Nagpur - 261 ELT 1088 iv. Agro Impex vs. Commissioner of Customs, Mumbai - 158 ELT 705 8.8 It was further submitted that the LAA had tried to classify MPE resins as an additive to LLDPE/LDPE films to increase its quality of performance and nowhere it is held that it is also LDPE. In this regard, the Learned Advocate submitted that the classification of product cannot be made arbitrarily based on details drawn from Websites. 8.9 The Ld. Advocate averred that the LAA stated that normally, liner bags are manufactured with a 70% of LLDPE granules and 30% o....
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....vered under the Chapter Heading 3901 10. LLDPE is specifically covered under Chapter Sub-Heading 3901 10 10 and all other remaining Polyethylene are required to be covered under the Chapter Sub-Heading 3901 10 90. Chapter Sub-Heading 3902 10 10 as mentioned in the initial procurement certificate against "ENABLE 2005-CE" is meant for Polypropylene. The Appellant have misguided and falsely implicated the Range in issue of incorrect procurement certificates by mis-declaring the product. Mis-declaration is nothing but making declaration which is not true. 10. Heard both sides and perused the appeal records. 11. The issues for consideration in this case are: i. Whether the item imported by the Appellant, viz. "ENABLE 2005-CE", is eligible for benefit of exemption under notification No. 52/2003-Customs dated 31.03.2003 or not; ii. Whether the goods are liable for confiscation or not and whether fine, in lieu of confiscation, is imposable or not; iii. Whether penalty is imposable on the Appellant or not. 12. The case of Revenue is that in terms of EOU Scheme, the Appellant are allowed to make duty free import of raw materials, viz. Relevant LDPE/LLDPE G....