TaxTMI 
TaxTMI 
2026 (3) TMI 764
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.... The said imported goods were shipped from Ghana and Peru. The appellant had availed benefit of exemption of Notification No.12/2012-Cus. dated 17.03.2012 in discharging duty on such gold bars for the imports made during the period 01.07.2014 to 28.11.2016. On the basis of intelligence, investigation was initiated by the DRI, Bangalore Zonal Unit on the premise that the appellant has wrongly availed the benefit of exemption Notification No.12/2012-Cus by conducting search at the office premises of the appellant on 20.01.2015 and 12.06.2017, recording statement etc. On completion of investigation, show-cause notice was issued to the appellant on 18.06.2019 denying the benefit of Sl.No.318 of Notification No.12/2012-Cus. dated 17.03.2012 and demanding differential duty of Rs.33,02,98,200/- short paid on the import made during the period from 01.07.2014 to 28.11.2016 under sub-section (4) of Section 28 of the Customs Act, 1962; proposing confiscation of the gold bars weighing 868.937 kgs. imported during the said period and imposition of penalties under various provisions of the Customs Act, 1962 on the appellant company and also the Directors. On adjudication, the differential duty w....
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....102-108 of Volume I of the Appeal Paperbook). ➢ In case the miner decides to export the gold dore bars, the exporter will weigh and assay the gold dore bars and the miner will transfer the gold dore bars to the exporter along with the packaging list. ➢ The exporter also prepares other documents as required by law based on the miner's packaging list and assay certificate for the purpose of export. ➢ The Appellant after negotiations with overseas licensed suppliers through a local broker in Ghana placed orders fixing the rate of purchase as per London Metal Exchange (USD per ounce for pure gold). The payment for the imports were made by the Appellant upon receiving the gold dore bars and receiving the scanned copies of the original documents such as invoice, Airway Bill, Country of Origin, Packaging List, Assay Certificate, Export License along with the consignment. 3.3. Similarly for imports from Peru, he has submitted the following: ➢ For imports from Peru, the Appellant placed the order directly to the support service provider, who then negotiated the rate of the gold dore bars. After negotiation, the service p....
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....pect to the import of the gold dore bars have been duly fulfilled by the Appellant. ➢ In the present case, the miners in Peru are themselves the exporter, therefore the packing list is provided by the miner themselves after the gold dore bar is ready for export. ➢ Thus the condition 34(b) of the Notification has been fulfilled in case of the imports of gold dore bars from Peru. ➢ As far as condition 34(c) of the Notification is concerned, it is required by the importer to produce an assay certificate issued by the mining company. ➢ In Peru, it is the same company who is the miner and the exporter of the gold dore bar manufactured. The mere fact that the mine is located away from the assaying facility cannot be a determining factor to deny the benefit of the exemption. Therefore, the packaging list and the assay certificates issued by the same company mining, duly fulfill the conditions of the Notification. 3.7. In support of their claim that they have complied with the condition of notification, they placed reliance on the judgment of the Hon'ble Karnataka High Court in the case of Rajesh Exports Vs. Chairman, CBE&C....
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.... argument that a distinction must be made in exemption provisions generally and exemption provisions which has a beneficial purpose. It is held by the Hon'ble Apex Court that beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. Further, he has submitted that the rate of CVD applied in computing the demand is erroneous. In support, they referred to the judgment in the case of CC (Exports), Chennai Vs. Prashray Overseas Pvt. Ltd. [2016(338) ELT 44 (Mad.)] and in Aidek Tourism Services Pvt. Ltd. Vs. CC, New Delhi [2015(318) ELT 3 (SC)]. 3.9. Learned Senior Advocate has further submitted that the learned Commissioner in the impugned order erred in invoking the extended period while confirming the demand. He has submitted that the extended period of limitation as prescribed under Section 28(4) is invocable only in cases where there is fraud, collusion or wilful misstatement or suppression on the part of the assessee. In the present case, the appellant was under a bona fide belief that they had fulfilled all the conditions prescribed under the exemption Notification No.12/2012-Cus dated 17.03.2012. All the rele....
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....w of the judgment in the case of Dilip Kumar & company [2018(361) ELT 577 (SC)] and in the case of Shri Hari Chand Shri Gopal [2010(260) ELT 3 (SC)], they are not eligible to the benefit of the said notification. 4.2. Further, he has submitted that in the Bills of Entry, the appellant had mentioned Mining packing list and assay certificate attached. All the Bills of Entry accompany with the copy of the packing list by the miners or mining company which reflects the quantity and purity of GDBs. What is suppressed from the Department is that the order for import is placed on the exporter or a middle man thereby existence of small miner in the case at hand is itself under doubt; all the import orders are placed verbally and there is no official correspondence for placing such high value imports; even otherwise small miners do not have the facility to assay the gold and the purity mentioned in the packing list of miners is prepared / based on the assaying of gold by the exporter or the assaying agency attached to the exporter. Even the quantity mentioned in the packing list by the small miners is not correct reflection of the actual quantity mined. The said small miners bring gold i....
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....porter produces before the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, an assay certificate issued by the mining company or the laboratory attached to it, giving detailed precious metal content in the dore bar; (d) the gold dore bars are imported by the actual user for the purpose of refining and manufacture of standard gold bars of purity 99.5% and above; and (e) the silver dore bars are imported by the actual user for the purpose of refining and manufacture of silver bars of purity 99.9% and above. 7. In the impugned order, the learned Commissioner has accepted that the appellant has fulfilled the Condition No.5 and also Condition No.34(a) of the said Notification. However, he has concluded that the appellant has failed to comply with the Condition No.34(b). A plain reading of clause (b) of Condition 34 reveals that the goods are imported in accordance with the packing list issued by the mining company by whom they were produced. In the present case, the finding of the Commissioner that the miners have not themselves prepared the packing list but various exporters like M/s. K.K. Enterprises Limited, Ghana, M/s.....
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.... list from the miners as well as assay certificate and the packing list issued by the exporters in respect of Ghana imports. All these documents have been submitted along with Bills of Entry at the time of assessment claiming the benefit of Notification No.12/2012-Cus. dated 17.03.2012. It is his contention that the condition No.34(b) of the said Notification has been complied in the case of Ghana imports. In the case of imports from Peru, the miner and the exporter are one and the same; therefore, the packing list as well as assay certificate have been issued by the miner and exporter. Therefore, there is no issue as for as imports from Peru are concerned in complying with the Condition No.34(b). In such imports, the learned Commissioner held that the laboratory is not attached to the mining company but away from the mining company; hence, condition 34(c) is not satisfied. It is their argument that 'attached to mining company' does not mean physical attachment and the laboratory once undertaking the analysis of the GDBs and issues assay certificate, it complies with the condition No.34(c), being attached to do such tests and issue certificate. 9. We find merit in the contention....