TaxTMI 
TaxTMI 
2026 (2) TMI 549
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....nts had, inter alia, imported various fertilizers viz., Potassium Nitrate, Potassium Sulphate, Calcium Nitrate etc., and re-sold the same in the local market, directly to the farmers or through dealer network. The fertilizers imported by the appellants was classifiable under Chapter 31 of the First Schedule to the Customs Tariff Act, 1975 and were used as fertilizers only by the end-users. Such fertilizers are also specified in the Fertilizer (Control) Order, 1985. The appellants had been claiming the benefit of exemption from payment of additional duty of customs (CVD) in terms of Serial No.63 of the Notification No. 4/2006-C.E. dated 01.03.2006 even prior to the Budget, 2011. Notifications No.1/2011C.E. and No.2/2011-C.E. both dated 01.03.2011 were introduced in the Budget 2011, providing for effective rate of duty on goods of chapter 31, which are clearly shown as not to used as fertilizers at 5% advalorem in general and at 1% where no CENVAT credit facility was taken on input or input services. 2.2 Directorate of Revenue Intelligence (DRI) had started an investigation on the import of fertilizers into India by various importers, including the appellants. The appellants furni....
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....import; and the officers of DRI investigation, who had demanded CVD at 5% adv. on such imports. The appellants also were under the impression that that the CVD exemption provided under Notification No. 4/2006-C.E. dated 01.03.2006 continued in the same manner after 01.03.2006, and they failed to notice the amendments made vide Notification No. 04/2006-C.E. dated 01.03.2006. He further stated that upon noticing the differential CVD required to be paid on the imported goods, the appellants had paid the entire CVD on all twenty-two imported consignments during the investigation stage itself, on the date of recording the statement of the Deputy General Manager of the appellants, by reporting voluntary compliance. He further submitted that the levy of interest under Section 28AA and penalty under Section 114A of the Customs Act, 1962 having not been made specifically applicable under the Section 3 of the Customs Tariff Act, 1975, there is no need to pay the same. In this regard, he relied upon the judgement of the Hon'ble Bombay High Court in the case of Mahindra and Mahindra Vs. Union of India - 2022 (10) TMI 212 - BOMBAY High Court which held that in the absence of specific provisions....
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....ng entry in column (5) of the Table aforesaid. Explanation.- For the purposes of this notification, the rates specified in column (4) of the said Table are ad valorem rates, unless otherwise specified. S. No. Chapter or heading or sub- heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. xx xxx xxx xx xx 63 31 All goods, other than those which are clearly not to be used- (a) as fertilisers; or (b) in the manufacture of other fertilisers, whether directly or through the stage of an intermediate product Nil -" The aforesaid exemption entry, inter alia, was amended by issue of Notification No.4/2011-C.E. dated 01.03.2011 in the Budget 2011, for providing further restriction in the scope of exemption entry as follows: 63 31 All goods, other than those which are clearly not to be used in the manufacture of other fertilizers, whether directly or through the stage of an intermediate product Nil - 7. Plain reading of the exemption entry at Sl. No. 63 of the notification dated 4/2006-C.E., dated 01.03.2006 prior to 01.03.2011 and post amendment vide No.4/2011-C.E. dated 01.03....
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....ertilizer) Fertilizers as per M/v APL Almandine V 391 vide Bill of Lading No. BL-APLU020854614 dated 01.04.2011 at Nhava Sheva port is for manurial purpose only. It is further declared that after clearance, the same will be used solely as manure" For Zuari Industries Limited Sd. M.P, Madhav Sr. Manager-Agri, Inputs Zuari Nagar, Goa Dated 16.04.2011." 8.3 From the wordings of the exemption entry at Sl. No. 63 of the notification dated 01.03.2006, it would be evident that even though the imported goods cleared for direct use as 'fertilizers' was exempt earlier to 01.03.2011, subsequent to amendment vide Notification No.04/2011-C.E. it is only those goods that are used in the manufacture of fertilizers and not those directly sold as fertilizers in the open market was eligible to 'Nil' rate of duty; however they were provided with 5%/1% concessional duty of CVD depending on the availment of CENVAT credit facility. On reading of the above changes in the notification and the undertaking given at the time of import before the customs authorities, reveal that the non-payment of CVD at 5% appears to be unintentional on the pa....
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....mitted duty liability and the amount settled by respondent no. 2. We do not agree with respondent no. 2 that CVD, SAD and surcharge are being recovered under section 28 of the Customs Act, 1962. Consequently Section 28AB of the Customs Act, 1962 also will also not be applicable. In the absence of specific provision relating to levy of interest in the respective legislation, interest cannot be recovered by taking recourse to machinery relating to recovery of duty." 8.5 In the appeal filed by the Revenue against the above judgement of the Hon'ble High Court of Bombay, before the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No. 18824/2023, the Hon'ble Supreme Court had dismissed the SLP being devoid of any merits. Further, in the Review Petition Diary No. 41195/2023 preferred by the department, the Hon'ble Supreme Court had also held that there is no error apparent on the face of the record or any merit in the Review Petition warranting reconsideration of the order impugned. Therefore, the Hon'ble Supreme Court dismissed the Review Petition. 8.6. We further find that the legal provisions under Section 3(12) of the Customs Tarif Act, 1975 was suitably amended vid....