Custom, Excise & Service Tax Tribunal
Global Star Logistics[Cha] vs Commissioner Of Customs, Tuticorin on 31 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI S.No. Appeal No. Appellant Respondent
1. C/41257/2015 Global Star Logistics[CHA] Commissioner of Customs, Tuticorin
2. C/41258/2015 Global Star Logistics[CHA] Commissioner of Customs, Tuticorin
3. C/41259/2015 Global Star Logistics[CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal Nos.12 to 17/2015-TTN (CUS) dt. 24.03.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
4. C/41306/2015 Diamond Shipping Agencies (P) Ltd.[CHA] Commissioner of Customs, Tuticorin
5. C/41311/2015 Diamond Shipping Agencies (P) Ltd.[CHA] Commissioner of Customs, Tuticorin
6. C/41312/2015 Diamond Shipping Agencies (P) Ltd.[CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal Nos.12 to 17/2015-TTN (CUS) dt. 24.03.2015 passed by Commissioner of Customs & C.Ex (Appeals-20 Tiruchirappalli
7. C/42446/2014 Raja Agencies [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal Nos.77 & 78/2014 dt. 13.08.2014 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
8. C/40702/2015 V.V. Minerals [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.04/2015-TTN (Cus.) dt. 14.01.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
9. C/40965/2015 Manian Bricks [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.07/2015-TTN (Cus.) dt. 12.02.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
10. C/40982/2015 A1 Hollow Bricks and Construction [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Original No.01/2015 dt. 16.01.2015 passed by Commissioner of Customs, Tuticorin
11. C/41508/2015 Srinivas Trust [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.22/2015 dt. 15.04.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
12. C/41551/2015 Krishna and Co.
[Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.23/2015 dt. 15.04.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
13. C/40332/2016 Diamond Shipping Agencies P. Ltd. [CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.40 and 41/2015-TTN (CUS). dt. 24.11.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
14. C/40333/2016 Global Star Logistics[CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.40 and 41/2015-TTN (CUS). dt. 24.11.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
15. C/40406/2016 Diamond Shipping Agencies P. Ltd. [CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.43 & 44/2015-TTN (CUS). dt. 14.12.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
16. C/40407/2016 Diamond Shipping Agencies P. Ltd. [CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.47/2015-TTN (CUS). dt. 14.12.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
17. C/40408/2016 Diamond Shipping Agencies (P) Ltd. [CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.42/2015-TTN (CUS). dt. 14.12.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
18. C/40415/2016 Global Star Logistics[CHA] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.43 & 44/2015-TTN (CUS). dt. 14.12.2015 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
19. C/40545/2016 V.V.Mineral [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.10/2016-TTN (CUS.) dt. 06.01.2016 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
20. C/40738/2016 Siva Shelters [Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.5/2016-TTN (CUS.) dt. 06.01.2016 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
21. C/40983/2016 Dharson & Co.
[Importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.25/2016-TTN (CUS.) dt. 23.02.2016 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli
22. C/40984/2016 JC Residency [importer] Commissioner of Customs, Tuticorin Arising out of Order-in-Appeal No.24/2016-TTN (CUS.) dt. 23.02.2016 passed by Commissioner of Customs & C.Ex (Appeals-2) Tiruchirappalli Appearance:
Shri A.K. Jayaraj, Advocate Shri M.N. Bharathi, Advocate Shri S.Ramachandran, Consultant For the Appellant Ms.P.Hemavathi, Commissioner (AR) For the Respondent CORAM :
Honble Ms. Sulekha Beevi C.S. Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Date of hearing / decision : 31.01.2018 FINAL ORDER No. 40271-40292 / 2018 Per B. Ravichandran All these 22 appeals are on the common dispute with reference to CV Duty liability of imported cement by various parties. The appeals are by such importers as well as Custom House Agents (CHA) who processed the documents for import. Appeals by CHAs are only against penalties.
2. The brief facts of the case are that the importer-appellant imported Ordinary Port Land Cement Grade 43 (BIS approved) as per BS EN 197-1 : 2000. The cement was imported in packaged form of 50 kgs. each. The importer-appellant/CHA filed Bills of Entry for clearing the said goods claiming CV duty concession in terms of Sl.No.1C of Notification No.4/2006-CE dt. 1.3.2006 as amended. The Bills of Entry indicated among other things "actual user" and claimed the said concession. The bills were assessed and finalized and goods were allowed extending the said concessional rate of CV duty. Later in 2013 and 2014, the department entertaining a view that concession claimed and allowed under the said notification is not correct, initiated proceedings against all the importer-appellants/CHAs. The lower authorities upheld the view of the Revenue that these concessions were wrongly extended / availed to the appellant. The differential duty was confirmed along with penalties. Penalties were imposed on the CHAs who dealt with documentation of such imports.
3. Ld. Counsels/Consultant appeared on behalf of the appellants. The arguments were led by Ld. counsel Shri A.K. Jayaraj. He submitted mainly on the following lines :
a) The imports were made from actual manufacturer in Pakistan. The transaction is through high sea sales. The Bill of Lading, manufacturer invoices and high sea seller invoices all can be tallied to establish the fact that the same were imported from the manufacturer.
b) The cement imported was used for construction, civil activities for own consumption by the appellant-importers. It is the appellants who declared this fact repeatedly starting from the date of import.
c) The assessments were finalized after due verification and no questions were raised regarding concession claimed by the appellant and the importer and the same was allowed. Without any additional evidence contrary to the original assessment, the present proceedings were initiated. Even now, the department is confirming the differential duty only on the ground that the appellant-importer failed to produce the evidence of actual use. When the initial claim of actual use was accepted by the officers with no conditions put for further proof, now Revenue cannot take a stand that the appellant has failed to establish the actual use.
d) The demand is contested on limitation also. As already noted, these imports were assessed based on the declarations made by the appellants claiming the said concession available to the actual user. In case of any doubt, due verification or follow up should have been done by the officers.
e) To set aside the approved assessment by the competent officers contrary evidence of misuse of the concession post-importation should have been brought out by the Revenue. In the present case, there is no contrary evidence against the claim of the appellant of actual use. Hence, there can be no case of fraudulent misstatement with intention to evade duty. No evidence to that effect at all is available.
f) On behalf of CHA/appellants it was submitted that they have acted based on documents and details provided by the importers. None of these documents were found to be improper or misstating the facts. There is no question of CHA being party to any interpretation or post-import condition of goods. There is no abetment of any offence inviting penalty.
4. Ld. Commissioner A.R opposed the appeals on the following :
i) The concession claimed by the appellants is available only for actual user and that too when bought from actual manufacturer. These are claims based on certain conditions which are the requirement to be fulfilled by the claimant. If the claimant failed to fulfil the conditions, the Revenue cannot be asked to establish the contrary case.
b) Though the assessments were finalized when the goods were cleared, based on verification, Revenue can always proceed to demand differential duty if satisfactory evidences were brought for denial of such exemption.
c) The demand proceedings were well within the law and the claim of limitation cannot be entertained.
5. We have heard both sides and perused the appeal records.
6. On the first issue we have perused the sample invoice and import documents. It is clear that Bills of Entry filed along with invoices contain details of goods imported. The exporters details with evidences linking up with high sea sale invoices further linked up with Bill of Entry. Hence, the import from the designated exporter who is declared as manufacturer of cement based on the details in the invoices cannot be disputed. No contrary evidence that purchase is from a trader has also been submitted by the Revenue.
7. Regarding the second issue of actual user condition for the imported cement, we note that the appellants all along claimed fulfilment of such condition. Though same is post-importation, actual use based condition, the assessments were finalized accepting the claim of the appellant for such concessional duty. It would appear that officers had opportunity to satisfy themselves about the actual user condition. In case of possible doubt on such fulfilment, the requirement is to resort to provisional assessment and call for post-importation actual user confirmation. This was not done in the present case which will show that the assessing officer is satisfied with the claim made by the appellants. The Revenue can initiate demand proceedings of differential duty by denying the exemption later, only upon unearthing the evidences of misuse of such end-use condition. Such evidences have not been brought before us. The impugned orders observe that the appellants failed to establish actual user. No such condition regarding manner establishing such fact was put at the time of assessment and clearances. The claim in the Bills of Entry at the time of import as well as in the written submissions made before the lower authorities by the appellant-importer categorically states about not selling the imported product to any other person. No evidence to that effect has also been brought by the Revenue. In such situation, the eligibility to the CV duty concession as claimed by the appellant during the material time cannot be questioned much later without any evidence.
8. In view of above discussion and analysis, we find that there is no merit in the impugned orders denying CV duty concession wherever available to the importer-appellants of such conditions. Accordingly, the impugned orders are set aside and all the appeals are allowed with consequential reliefs, if any, as per law.
9. We note the penalties imposed on the CHA who only processed the import documents are not legally sustainable. For penalty to be imposed for abetting a violation by another person, intentional action has to be shown. No such evidence has been brought out. Accordingly, we hold the penalties imposed on CHAs are not sustainable The same are set aside.
10. All the appeals are allowed.
(dictated and pronounced in court)
(B. Ravichandran) (Sulekha Beevi C.S)
Member (Technical) Member (Judicial)
gs
9
Appeal Nos.C/41257-41259, 41306,41311,41312/2015
C/42446,40702,40965,40982,41508,41551/2015
C/40332,40333,40406-40408,40415,40545,40738,40983, 40984/2016