Wind World (I) Ltd vs Commissioner Of Customs (I), Nhava ...

(Arising out of Order-in-Original No. 91/2012 dated 17.7.2012 passed by Commissioner of Customs (Import), Nhava Sheva)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :

CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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Wind World (I) Ltd. Appellant Vs. Commissioner of Customs (I), Nhava Sheva Respondent

Appearance: Shri Paresh M. Joshi, Advocate, for appellant Shri M.K. Sarangi, Joint Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 15.9.2015 Date of Decision: 1.10.2015

ORDER NO

Per: P.K. Jain

Brief facts of the case are that the appellant was importing Epoxy Resin Epotec and clearing it without payment of duty under Notification No. 85/2004-Cus. for basic customs duty, Notification No.6/2006 for CVD and Notification No.20/2006-Cus. for SED purpose. They were following the said pattern of payment of duty from 2007 onwards and were getting the said goods regularly. On the basis of an information, investigations were taken up by DRI and it was found that the appellant was not eligible for the benefit of Notification 20/2006-Cus. as para 3 of the said notification specifically prohibits that the benefit of the said notification is not available if the appellant is availing benefit of Notification 85/2004-Cus. dated 31.8.2004. During investigation, the appellant paid duty pertaining to the normal period of limitation along with interest. After investigation, a show cause notice was issued which was adjudicated by the impugned order wherein the demand has been confirmed for the extended period of limitation and imposed equivalent amount of penalty under Section 114A of the Customs Act, 1962 and also confirmed interest leviable on the said amount.

2. Learned counsel for the appellant submitted that the case covers about 72 bills of entry and they were regularly importing the said item and according to them SED was not chargeable under serial No.1 of the table annexed to Notification 20/2006-Cus. However, when the DRI officials pointed out that the benefit of the said notification is not available in view of paragraph 3 of the said notification, they had paid the duty for the normal period of limitation. They further submitted that they have never suppressed any fact or they have not given any misstatement or any other things so as to invoke the extended period of limitation under Section 28 of the Customs Act. It was further submitted that in the impugned order, the Commissioner has also not brought down any details which would justify the invocation of extended period of limitation.

3. Learned AR reiterated the findings of the Commissioner in the order. He particularly reiterated and read para 5.3 and 5.4. He further submitted that most of these bills of entry were cleared under the RMS system wherein no assessment is done and whatever is submitted by the appellant is accepted by the department and in such a situation it is the responsibility of the importer to ensure that the assessment is correctly done. In the bill of entry, the appellant has declared that whatever has been stated in the bill of entry is correct while the position is that they were not eligible to the benefit of Notification 20/2006-Cus. but still they claimed the benefit of the said notification. The learned AR also submitted the following case laws:-

(i) CCE, Visakhapatnam vs. Mehta & Co. reported in 2011 (264) ELT 481 (SC);

(ii) Concept Pharmaceuticals Ltd. vs. CCE, Aurangabad reported in 2015 (319) ELT 129 (T.-Mum.);

(iii) Nagpur Transwell Power P. Ltd. vs. CCE, Nagpur reported in 2009 (243) ELT 459 (T.-Mum.).

4. We have considered the submissions made by both the sides. We have also seen the bills of entry as also the notifications. On perusal of these documents, we do not find that the appellant themselves have misstated anything in the bill of entry. Here it is a simple case wherein the appellant was not eligible for the benefit of Notification 20/2006-Cus. but they availed of the benefit of the said notification in view of entry at serial No.1 of the table annexed to the said notification. We also note that out of 72 bills of entry, approximately 40% bills of entry were passed through the officers and the remaining were cleared under RMS system. We note that even the bills of entry which were not cleared through RMS system were passed through the officers. The officers could not point out that since the appellant is availing the benefit of Notification 85/2004, they cannot avail the benefit of Notification 20/2006 in view of para 3 of the later notification. Keeping in view the overall facts and circumstances of the case, we do not consider that the ingredients of Section 28 are satisfied so as to invoke the extended period of limitation in the present case. In the result, the demand of duty within the normal period of limitation is confirmed while the demand beyond the normal period is set aside. Further, we do not consider it a fit case for imposition of penalty under Section 114A of the Customs Act. Accordingly the penalty imposed is set aside.

5. The appeal is allowed in above terms.

(Pronounced in Court on 1.10.2015)

(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)

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