Custom, Excise & Service Tax Tribunal
Hyderabad-Ii vs Saint Gobain Vetrotex India Ltd on 26 September, 2018
(1) Appeal No. C/1199/2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Division Bench
Court - I
APPEAL No. C/1199/2010
(Arising out of Order-in-Appeal No. 01/2010 (H-II)(D)Cus, dated 17.03.2010 passed by
CCCE&ST, Hyderabad)
CCCE&ST, Hyderabad-II .. APPELLANT
Vs.
SAINT GOBAIN VETROTEX INDIA LTD .. RESPONDENT
Appearance Shri A.V.L.N. Chary, Superintendent/AR for the Appellant. None for the Respondent.
Coram:
Hon'ble Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) Hon'ble Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Date of Hearing: 26.09.2018 Date of Decision: 26.09.2018 FINAL ORDER No. A/31209/2018 [Order per: Mr. M.V. Ravindran]
1. This appeal is directed against Order-in-Appeal No. 01/2010 (H-
II)(D)Cus, dated 17.03.2010 and is filed by Revenue.
2. None appeared on behalf of the Respondent despite notice.
(2) Appeal No. C/1199/2010
3. Since the matter is of 2010 and there being no response from the respondent nor request for any adjournment, we take the appeal for disposal.
4. Heard Ld. DR and perused the records.
5. Revenue is aggrieved by the impugned order on the ground that the first appellate authority has upheld the Order-in-Original which has dropped the demands raised on the respondent while upholding the demands within the period of limitation with a dispute of misdeclaration of value of goods as reported.
6. On cursory look of the submissions made by Ld. DR and perusal of records, it transpires that the show cause notice dated 04.08.2008 was issued for demanding a differential customs duty from the respondent for the period 11.08.2003 to 22.01.2008. The said show cause notice was issued when the audit query was raised by A.G's Office on 16.03.2005. The adjudicating authority in the Order-in-Original at para Nos. 48 & 49 has specifically recorded that in response to AG Audit query, the respondent herein had replied in detail as to the reason for non inclusion of valuation charges in the bill of entry for clearance of imported goods vide letter dated 28.03.2005. The adjudicating authority has recorded that subsequent to letter received from the respondent, no correspondence was entered until a (3) Appeal No. C/1199/2010 show cause notice was sent to the respondent on 04.08.2008. He had held that the demands raised for the period beyond six months from the date of show cause notice are hit by limitation while upholding the demands within a period of six months. The said adjudication order was challenged in appeal by revenue before the first appellate authority. The first appellate authority in the order has held that the adjudicating authority was correct and rejected the appeal of revenue. Relevant portion is reproduced.
" From the above, it is clear that once it is established that the Assessee has not paid the duty by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of the Act or of the Rules made there under with intent to evade payment of duty, then the period of five years is not curtailed merely because the Department has come to know about the fraud, suppression, etc., committed by the assessee. But in the instant case the ingredients for invoking the proviso are conspicuously absent. In response to an AG audit query dated 16.03.2005 as to whether the ' valuation charges' paid to Airline Carrier would form part of the assessable value or not in respect of bushings imported against export of worn out bushes, the Respondents vide their letter dated 28.03.2005 clarified that the valuation charges would not form part of the assessable value. Subsequently they imported a number of consignments without including the valuation charges in the Bills of Entry on a bonafide belief that the clarification given them was accepted by the department. Given the fact that the Bills of Entry filed by them after submission of clarification were assessed by the Department from time to time without raising any query or objection, their bonafides cannot be suspected. In these circumstances, the Respondents cannot be blamed of suppressing any facts or wilful misstatement or collusion. The Respondents cannot be penalized for the apparent inaction of the department. "
7. In our view, the above recorded findings of the first appellate authority are to be concurred with after considering the facts of the case in hand.
(4) Appeal No. C/1199/2010
8. In view of the above, we find that the impugned order is correct and legal and does not suffer from any infirmity. Impugned order is upheld and appeal is rejected.
(Dictated and pronounced in open Court)
(P.VENKATA SUBBA RAO) (M.V. RAVINDRAN)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
vrg