TaxTMI 
TaxTMI 
2026 (3) TMI 46
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....nalty both under Sections 114 and 114AA of the Act. 1.2 Facts in brief, which are necessary and relevant for disposal of this appeal, are as follows: - M/s. Ganges Internationale Private Limited, Chennai - 600 108, the Appellant herein, engaged in the manufacture and export of both Towers for Transmission of Electricity and Telecom Towers, had claimed DEPB benefits for both the items exported under Sl. No. 24 of Product Group Code 61 (Engineering Products) wherein the description of the export product was given as "Galvanised transmission line towers and parts thereof". It is the case of the Revenue that on specific intelligence gathered, DRI, Chennai Zonal Unit registered a case against the Appellant on the ground that the Appellant, by mis-declaring Telecom Towers as Galvanised transmission line towers, had obtained DEPB benefit under the Product Group 61-Sl.No. 24, to which, the Appellant was not entitled to as the DEPB benefit rightly accrued to them only under Product Group 90 - Sl. No. 22D thereby resulting in excess DEPB benefit. The basis for denial of the DEPB benefit as claimed and obtained was that: the words 'Line' and 'Transmission lines' were generally use....
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.... under erstwhile Foreign Trade Policy (FTP) and only the Director General of Foreign Trade (DGFT) was the competent authority to decide whether the grant of DEPB was correct or not and whose decision was final and binding; the constituent materials for Towers both the Electricity and Telecom Transmission being one and the same, they had taken up the issue with the Directorate of Drawback, who, vide Letter dated 21.09.2017 asked the Appellant to support their claim for re-fixing DEPB rates for Telecom Towers with necessary documents; and the supporting documents called for were being submitted. Appellant requested to keep the proceedings in abeyance till a decision was taken by the DGFT on their representation. 4. The Respondent Commissioner, however, appears to have proceeded with adjudication of the case and confirmed the proposals made in the SCN, by recording the following findings: - i. Initially, as per Public Notice No.44 dated 18.10.2002 issued by the Ministry of Commerce, Galvanised Transmission Line Towers & parts thereof alone were considered as export products under SION and Telecom Towers were included as export products under SION through an amendment dated....
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....red the goods as Galvanised Transmission Line Towers instead of Telecom Towers in the Shipping Bills so as to avail higher DEPB rate, and, but for the investigation, the fraud would not have come to notice. 5. In the grounds of appeal filed as part of the Appeal Memo, the Appellant has requested for quashing the impugned Order on the following grounds: - i. There cannot be different DEPB rates for items covered under a single SION - C220 and the impugned Order does not address this question. ii. Appellant had been exporting for more than a decade galvanized steel structures both for Telecommunication as well as Electricity Transmission purposes and the very fact that the manufacturing processes being one and the same for both the products reinforces their contention that there can't be two DEPB rates against a single SION. iii. The DIPP, Ministry of Commerce, responding to a reference dated 07.09.2012 of the DGFT, clarified that SION 220 applied to both Transmission Line Towers and Telecom Towers, thereby making both of them eligible to DEPB entry against Sl. No. 24 of Product Code 61. iv. The Competent authority to decide DEPB rates is DGFT a....
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....na & Company 2024 (1) TMI 834 - Madras High Court Paragraphs 14 to 16 4. Pankaj Chordia 2025 (9) TMI 551 - CESTAT New Delhi Paragraphs 20 and 45 5. Axiom Cordages Ltd. 2020 (9) TMI 478 - CESTAT Mumbai Paragraph 13 6. Alphonse Joseph 2006 (204) E.L.T. 487 (Tri. -Bang.) Paragraph 6 7. Pradip Polyfills (p) Limited 2004 (173) ELT 3 (Bom) Paragraph 7 8. Adani Exports Ltd. (2024) 17 Centax 295 (Tri-Ahm) Paragraph 18 iii. The mere fact that Telecom Towers & parts thereof were added to SION at Sl. No. C220 by a subsequent Public Notice cannot mean that the two products are different for purpose of conferring DEPB benefit under Sl. No. 24 of Product Code 61 since it can also mean making good an omission or correcting an incorrect entry. iv. The Respondent Adjudicating Authority without quoting any statutory provision, and by ordering cancellation of Let Export Orders granted under Section 51 of the Act, has assumed the power of suo moto revision, which is not permitted in law as the only legal course available to the Respondent was to direct the Lower Authority to file an application to the Appellate Authori....
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.... from the decision of CESTAT, Mumbai in the case of M/s. Suresh Kumar Agarwal [2024 (6) TMI 779]. 7. Per contra, the Ld. Deputy Commissioner Shri Sanjay Kakkar, appearing for the Respondent-Adjudicating Authority stoutly defended the impugned Order and he would also rely on the findings in the impugned order and requested to dismiss the Appeal. 8. We have gone through the Appeal papers and considered the rival contentions. At the outset, we would like to record the fact that the issue arising for our decision in this Appeal is not whether Telecom Towers intended for cellular use fall for classification under a specific Tariff Heading of the Customs Tariff Act, 1975 (CTA for short) or is entitled to the benefit of an exemption Notification issued under the CTA; rather, the issue in dispute is as to whether the Telecom Towers exported by the Appellant are eligible for DEPB benefit against Sl.No.24 of Product Group Code 61 (Engineering Products). Keeping this basic fact in mind, we proceed to discuss and decide the issue posed for the determination. 9. It is not in dispute that the Appellant has been issued with/is in possession of DEPB scrips issued by the DGFT for Telecom T....
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.....): This case pertains to over-valuation of goods exported to fraudulently obtain excess DEPB/DEEC credits and their subsequent use for duty-free-import causing Customs Duty loss. While rejecting the Appeal filed by the department, the Coordinate Bench at Paras 18 and 19 of the Order observed as under: - "18. ......The department's appeal does not allege that the licences had been cancelled by the Additional Director General of Foreign Trade in the instant case. Clearly, the facts are on record that the DGFT has not cancelled the DEPB credit scrips and same were valid in the eyes of law. The DGFT has still not cancelled or modified the DEPB licences already granted. So it is clear that DGFT does not agree with the contention of the department. We are unable to agree with the allegation of the revenue that the exports have been mis-declared and DEPB scrips have been sought for and obtained fraudulently and imports have been made using invalid DEPB scrips. If it is the case of the department that DEPB scrips are fraudulently obtained by the respondents, it would have been appropriate that the department and customs authorities should have taken steps to get the DEPB scri....
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.... only by the DGFT. In fact, we have held that it is open for the Customs Authorities to verify the export goods with reference to the declaration submitted by the exporter. Prima facie, when there is misdeclaration, the Customs Authorities are duty bound to inform the DGFT authorities to take necessary action for recovery of the excess credit. In other words, this Bench in the case of Adani Exports cited supra by the learned advocate has held that the power to determine and modify DEPB credit vests only with DGFT Authorities. Customs Authority's duty is to verify the exporters' declaration, quantity and value of export products. Once DGFT decides to grant credit, the Customs Authorities cannot modify the credit. This is not to mean that the exporter should go scot free with the mis-declaration. We only point out that as per Government's policy the jurisdiction to initiate recovery of excess credit lies with the DGFT. This is very clear from the following order of the DGFT in respect of the appellant's one DEPB licence wherein they had held that the appellant is not entitled for higher credit...." iv. TITAN MEDICAL SYSTEMS PRIVATE LIMITED VS CC, NEW DELHI reported in 20....
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.... stand opposed to the stand of the DGFT and DG (Tourism). ... 25. In order to obviate instances where officers of the Customs Department take stands at variance with the DGFT, the CBEC has issued a Circular in 2002 (26.09.2022) making it clear that such divergent views should not be taken and that when duty reduction or exemption had been granted by the DGFT or DG(Tourism), the Customs Department will align with such stand. The aforesaid Circular of the Board is binding upon the officers of all Commissionerate's of the Department. 26. In such an it is not open to the Customs Department to dispute classification of the goods imported and the view taken by the Department is diametrically opposed to the licence and the 2002 Circular. Moreover, this position has also been settled judicially as early as in 2003 by virtue of the Judgement in the case of Titan Medical Systems Pvt Ltd., and thereafter again in 2010 in Appu Hotels' case." 11. We also find that in para 73 (d) of the impugned Order that the Respondent has recorded a finding that the Appellant-exporter had knowingly and intentionally mis-declared the goods in the Shipping Bills as Galvanised T....
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....under Custom Tariff Act, 1975. 7308 STRUCTURES (EXCLUDING PREFABRICATED BUILDINGS OF HEADING 9406) AND PARTS OF STRUCTURES (FOR EXAMPLE, BRIDGES AND BRIDGE-SECTIONS, LOCK-GATES, TOWERS, LATTICE MASTS, ROOFS, ROOFING FRAME-WORKS, DOORS AND WINDOWS AND THEIR FRAMES AND THRESHOLDS FOR DOORS, SHUTTERS, BALUSTRADES, PILLARS AND COLUMNS), OF IRON OR STEEL; PLATES, RODS, ANGLES, SHAPES, SECTIONS, TUBES AND THE LIKE, PREPARED FOR USE IN STRUCTURES, OF IRON OR STEEL 7308 10 - Bridges and bridge-sections : 7308 10 10 --- Portable bridge u 15% - 7308 10 90 --- Other u 15% - 7308 20 - Towers and lattice masts : --- Towers, whether or not assembled : 7308 20 11 ---- For transmission line u 15% - 7308 20 19 ---- Other u 15% - 7308 20 20 --- Lattice masts u 15% - 7308 30 00 - Doors, windows and their frames and thresholds for doors u 15% - 7308 40 00 - Equipment for scaffolding, shuttering, propping or pit-propping u ....
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....ds for exportation if the Duty assessed had been paid. In all the cases covered by the 564 Shipping Bills, Let Export Orders had been issued only after being satisfied with the assessment, needless to say that the Let Export Orders have been passed by the Proper Officers in discharge of their quasi-judicial functions. Hence, as rightly contended by the Counsel for the Appellant, if the Commissioner, on review, found the Order improper, he could have exercised the revisionary power vested in him under Section 129D of the Act and directed the lower adjudicating authority to file an appeal to Commissioner (Appeals) with a prayer for setting aside the LEOs. However, in these cases, the Respondent took up suo moto revision, which has no sanction of law. Further, it is all the more relevant to observe here, as rightly argued, that the Respondent had not quoted any statutory provision for cancelling the LEOs. A Co-ordinate Bench of CESTAT in the case of Axiom Cordages Limited Vs CC, Nhava sheva-II, reported in (2023) 4 Centax 120 (Tri. -Bom.), vide Para 10, has made this statutory position clear. 16. We now take up the direction for re-assessment under Section 17 of the Act. The period....
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....6 (SC). We have examined the statutory provision contained in Section 17 of the Act of 1962. Sub-section (1) in said Section 17 has provided for self-assessment of the duty leviable on the imported goods. The self-assessment so made by the importer, can be verified by the department under sub-section (2) and/or sub-section (3). If on verification, the proper officer found that the self-assessment has not been done correctly by the importer, then he may re-assess the duty leviable on such goods and for such purpose, he should pass a speaking order, as contemplated under sub-section (5). We find that in the present case, the department has not taken recourse to the provisions contained in sub-section (2), (3) and (4) of said Section 17. Thus, the assessment done by the importer under sub-section (1) has attained finality and cannot be re-opened by the department. For re-opening the self-assessed bill of entry, the only recourse left to the department is for filing an appeal against such self-assessment, which apparently has not been done in the present case. Thus, the department has precluded from re-opening the already assessed bill of entry for confirming the additional duty demand....
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....assed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved th....
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....2009 (240) E.L.T. 490 (Bom.) = 2009-TIQL-317-HC-MUMCUS though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra). 45. ......... 46. .......... 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act." 15.2 We also find that by adopting the judgement delivered by the Hon'ble Supreme Court in the case of ITC L....
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....rpreting law is not acceptable or is contrary to intent and purport of enactment. 17. On plain reading of Sections 17, 50 and 51 with Valuation Rules, 2007, we find that Respondent is neither vested with power of re-assessment of goods already exported under Rule 16 of Drawback Rules, 1995 nor Valuation Rules, 2007. The goods which stand exported do not fall within ambit of 'export goods' as defined under Section 2(19) of 1962 Act, thus Respondent cannot invoke Rules 6 & 8 of Valuation Rules, 2007. In view of judgment of Hon'ble Supreme Court in the case of ITC v. CCE (supra), we find that shipping bill either self-assessed or assessed by proper officer is amenable to appeal by both sides. Respondent by way of show cause notice under Rule 16 of the Drawback Rules, 1995 cannot modify assessed shipping bill. 18. Therefore, we hold that Respondent in terms of Rule 16 of Drawback Rules, 1995 as well Valuation Rules, 2007 has no power to reassess a shipping bill which was duly assessed by proper officer at the time of export of goods. In the present case, goods in question stood exported thus impugned order is not sustainable in view of our afore stated findings as wel....
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....larified by the High Court of Punjab and Haryana. In that case, goods were exported on claim for drawback. Thereafter, DRI received intelligence that the exported goods were overvalued to claim ineligible drawback. Accordingly, an SCN was issued proposing to revise the value downwards and recover the excess drawback. Relying on the judgment of the larger bench of the Supreme Court in the case of ITC Ltd. v. CCE 2019 (368) ELT 2016, the Hon'ble High Court of Punjab and Haryana held that once an assessment of a Shipping Bill is done by the proper officer, the value therein cannot be modified even by a higher officer. Relevant extract of paragraph 15 of the judgment is as follows: "We on examination of the scheme of the 1962 Act and in view of the judgment of Hon'ble Supreme Court in case of ITC Ltd. (supra) find that Rule 16 of Drawback Rules, 1995 is also in the nature of execution proceedings thus an officer even higher in rank than proper officer, who framed assessment at the time of export, cannot modify a shipping bill qua value and consequent entitlement of duty drawback while issuing notice or passing order under Rule 16 of the Drawback Rules, 1995." ....