2025 (12) TMI 691

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....rming differential duty demand on imported cement on the grounds of alleged disapplication under Sl. No. 1A(ii) of Notification No. 4/2006-CE and rejecting the benefit of concessional rate under Sl. No. 1C of the said Notification. 2.1 The facts briefly stated are that M/s. SSN Trading Co., Madurai (hereinafter referred to as 'the Appellant') imported Cement of Pakistani origin through Tuticorin Port under 3 Bills of Entry classified under CTH 2523 2910 during various periods. The Appellant availed concessional CVD in terms of Notification No. 04/2006-CE dated 01.03.2006, as amended-two Bills of Entry under Clause 1(C) (for cement other than that cleared in packaged form) and one Bill of Entry under Clause 1A(ii) (for cement in packaged ....

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....e of packaging and RSP printing? ii. Whether Revenue can adopt contemporaneous RSP of domestic cement to re-fix RSP of imported cement? iii. Whether extended period under proviso to Section 28 is invokable? iv. Whether imposition of equal penalty under Section 114A is justified? 5. The Appellant submitted that the present dispute concerns the levy of CVD on imports of Portland Cement from Pakistan through Tuticorin, where the Department-based solely on post-clearance SIIB investigation-sought to reclassify the goods under clauses 1A(i)/(ii) of Notification No. 4/2006-CE by invoking Section 4A MRP-based valuation, despite the cement having been duly assessed and cleared under clause 1C as bulk supply to institut....

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....ught to revise the assessment without review under Section 129D, appeal against assessment, or reassessment proceedings. The principle from Decor India (affirmed by the Supreme Court, 1997 (94) ELT A51) dictates that once an out-of-charge (OOC) order is made without self-assessment, it functions as an assessment order and cannot be reopened by a simple show-cause notice (SCN). To revise such an assessment, customs authorities must use specific legal procedures outlined in the Customs Act, such as a review under Section 129D or reassessment proceedings "A notice for confiscation or demand of duty is not maintainable unless the order of assessment under Section 47 is first reviewed." And in the present case, no such review has occurr....

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....ded by this Tribunal involving identical circumstances, where it was held: - "Packaging of cement in 50 kg bags does not defeat eligibility under Sl. No. 1C when all sales are to industrial/institutional consumers." Thus, even cement in 50 kg retail-type bags qualifies for Sl. No. 1C so long as the buyers are industrial/institutional consumers, which stands established on record and the fact that Goods are in Bags does not Convert Industrial Sale into Retail Sale We therefore hold that the fact that the appellant imported cement in 50 kg packaged bags does not disentitle them from the benefit of Sl. No. 1C of Notification No. 4/2006-CE. The essential criterion for Sl. No. 1C is the nature of the buyer (industrial/institutiona....

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....l. No. 1C. 7.9 We find that the Notice has invoked the Extended Period. For invocation of extended period requires suppression, fraud, or wilful misstatement. In this case a) all import documents were presented to Customs; b) RSP printed on bags was disclosed; c) buyers were correctly declared; d) OOC order was passed after full Customs verification. e) Revenue has not produced any evidence of deliberate suppression. f) The dispute, at best, concerns interpretation of Notification, for which invoking extended period is impermissible. Therefore, we have to hold that the invocation of extended period is unsustainable. 7.10 Once extended period fails, penalty under Section 114A aut....