Custom, Excise & Service Tax Tribunal
Lsml Private Limited vs Cc Sea Ch - on 15 February, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT NO. III
CUSTOMS MISCELLANEOUS APPLICATION No.40122 of 2021
&
CUSTOMS APPEAL No.41022 of 2019
(Arising out of Order-in-Original No.288/2018-19-Chennai-I dated 14.03.2019 passed
by Commissioner of Customs, Chennai-I, Chennai]
M/s. LSML Private Ltd. Appellant
[formerly Leitwind Shriram Manufacturing Pvt. Ltd.]
Plot No.D.17, SIPCOT Industrial Complex, NH-16
Gummidipoondi, Tiruvallur District
Tamil Nadu 601 201.
VERSUS
Principal Commissioner of Customs Respondent
Chennai III Customs Commissionerate,
Custom House, 60, Rajaji Salai,
Chennai 600 001.
AND
CUSTOMS APPEAL No.41403 of 2019
(Arising out of Order-in-Original No.288/2018-19-Chennai-I dated 14.03.2019 passed
by Commissioner of Customs, Chennai-I, Chennai]
Commissioner of Customs Appellant
Chennai I Customs Commissionerate,
New Custom House,
Meenambakkam
Chennai 600 027.
VERSUS
M/s. LSML Private Ltd. Respondent
(formerly Leitwind Shriram Manufacturing Pvt. Ltd.]
Plot No.D.17, SIPCOT Industrial Complex, NH-16
Gummidipoondi, Tiruvallur District
Tamil Nadu 601 201
APPEARANCE :
Shri N. Viswanathan, Advocate
For the Assessee
Shri Vikas Jhajharia, Assistant. Commissioner (Authorized Representative)
For the Revenue
CORAM: HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL)
HON'BLE MR. P. ANJANI KUMAR, MEMBER(TECHNICAL)
2
DATE OF HEARING : 21.10.2021
DATE OF PRONOUNCEMENT: 15.02.2022
FINAL ORDER No._40070-40071/2022
Order PER: P. ANJANI KUMAR
Heard both sides and perused the records of the case.
2. M/s. LSML Private Ltd (formerly Leitwind Shriram Manufacturing Pvt
Ltd), the appellants (in Customs Appeal No.41022 of 2019), are
manufacturers of wind turbines at their factory located at Gummidipoondi;
they imported 1262 pieces of Hot Rolled Painted Steel Plates weighing
5507.403 MT, through the Chennai Port, vide BE no. 4008987 dated
22.01.2016 and bonded the goods in public bonded warehouse; they made
various clearances either for themselves or third parties such as Rajam
Steels ad V.K. Industrial Corporation Ltd etc and were duly allowed to be
cleared by the bond officer; in respect of 878.395 MT, vide BE No. 3056014
dated 31.08.2017, officers of SIIB stopped the clearance, after payment of
the duties as per the assessment made through the EDI; it was claimed
that the goods are liable for the payment of the anti-dumping duty in
terms of the provisional notification no. 44/2016 (ADD) dated 08.08.2016
and final notification no. 17/2017 ADD dated 11.05.2017 and the
corrigendum dated 11.07.2017 issued to the said final notification. The
appellant represented to the Chief Commissioner of Customs, vide their
letter dated 13.10.2017, who vide communication dated 01.11.2017,
informed the appellants that ADD is applicable to the goods cleared from
the warehouse after issue of notification 17/2017 ADD dated 11.05.2017.
2.1. The appellants, filed a Writ Petition bearing no. 33914/2017, before
the Hon'ble High Court at Madras, which was dismissed vide order dated
01.03.2018, while observing that Commissioner of Customs should issue a
notice under Section 110 (2) of the Customs Act, 1962, within six months
of the seizure, failing which the goods shall be returned to the person, in
terms of Section 110 (2) ibid; the appellant, aggrieved by the above order
3
of the learned Single Judge, preferred a writ appeal948/2018. Meanwhile,
the Commissioner issued the impugned show cause notice dated
07.05.2018. The SCN proposed reassessment for the Anti-dumping duty on
the seized goods covered by BE 3056014 dated 31.08.2018; confiscation of
goods under Section 111 (m) of the Customs Act, 1962; penalty under
Sections 112 (a) and 114AA; demand for ADD of Rs. 98446/- with
applicable interest on the goods already cleared under ex-bond BE
6798264 dated 21.09.2016; Commissioner passed the impugned order
dated 14.03.2019. Hon'ble Madras High Court, vide its order dated
21.11.2019, granted permission to withdraw the appeal with liberty to
raise all the points before this Hon'ble Tribunal with further liberty to move
the interlocutory application for release of the goods with direction to this
Tribunal to decide it expeditiously besides observing the expectation that
CESTAT will decide the appeal of the appellant on its own merit
uninfluenced by the orders passed by the learned Single Judge. The
appellant had accordingly moved appeal C/41022/2021 and a
miscellaneous Application C/Misc./40122/2021 seeking release of the
goods.
2.2. Revenue had also filed appeal C/41403/2019, against the same
impugned order, on the grounds that the Learned Commissioner did not
impose penalty under Section 114 A of the Customs Act, 1962 and that he
did not demand interest under Section 28AA of the Act. Both the appeals
and the miscellaneous application are taken up for disposal together.
3. Shri N. Viswanathan, Learned Advocate, appearing for the appellants
submits that reassessment of goods; holding that they are liable to pay
ADD; sustaining consequential demands as per SCN; confiscation of the
goods; allowing to be redeemed on payment of the fine etc by adjudicating
authority is totally opposed to the subtle facts and legal position; levy of
the ADD on the impugned goods being a new impost, was effective from
08.08.2016, after issue of notification, No. 44/2016 ADD, under Section
9A (1) of the CTA read with Rule 20 of the Rules framed thereunder;
4
import of the goods and the taxable event have taken place already on
22.01.2016; Learned Commissioner, sustaining the levy retrospectively by
placing wrong interpretation on Section 9A (8) of the CTA read with
Section 15 of the Act; provisions of Section 15 of the Act being machinery
provision and not a charging section, cannot be applied to the goods on
which the levy was not in force on the date of its import (taxable event).
He submits that the respondent ought to have considered the following
judicial pronouncements.
(a) Vazir Sultan Tobacco Co., 1996 (83) E L T 3 (SC) [paras 5, 9 & 11]
(b) Sneh Enterprises 2006 (202) E L T 7 (SC) [Paras 22-26]
(c) G.M. Exports 2015 (324) E L T 209 (SC) [Paras 24, 34, 36, 45, 48]
(d) Suja Rubber Industries 2002 (142) E L T 586 (Tri. -Chennai) [para 6]
(e) M.K.P. Fashions 2004 (174) E L T 47 (Tri. -Kol) [Paras 10 &11]
(f) Ashima Fabrics 2003 (154) E L T 530 (Tri. -Mum) [Para 17] confirmed by
SC reported in 2010 (341) E L T A100 (SC)
(g) J.M. Agarwal Tobacco Co., 2016 (341) E L T 346 (Tri. -All) [Para 4]
(h) Letter F. No. 345/2/2004 TRU (pt.) dated 10.08.2004
(i) Commissioner of Customs ICD N. Delhi versus Chandra Prabhu
4. Learned Advocate submits that the respondent tried to get over the
provisions of Section 9A (1) of the CTA and Rule 20 by giving a different
meaning to the term "import" by borrowing the meaning from the Oxford
dictionary (which also does not support his view) overlooking the statutory
definition appearing in Section 2 (23) of the Customs Act. He submits that
learned Commissioner gives wrong findings, to reject their claim that the
import of the subject goods being prior to imposition of levy, ADD is not
leviable, that
(i). Rule 13 and 20 of the 1995 Rules only specify the period of
implementation of the provisional and final notifications, whereas in the
case of the appellant the dispute with regard to the said Rules does not
arise and that the Rules only use the term 'importation' and not 'import or
imported goods' and therefore the above Rules are not relevant;
(ii). since the show cause notice has not invoked Section 9A (3) of the
CTA, he will not consider the contentions raised concerning the said
provision holding that there is no merit in the issue raised
5
(iii). import attains finality only when the ex-bond bill is granted Out of
charge order by the proper officer;
(iv). Section 9A (1) of the CTA is clearly against the provisions of Section
46 of the Act requiring the assessment of the goods on importation as well
as the various provisions under Chapter IX of the Customs Act;
(v). goods deposited in the warehouse are "dutiable goods" in terms of
Section 2 (14) of the Act;
(vi). Section 9A never referred to the anti-dumping duty as a duty in
addition to the payment of duties of customs and that Section 9A cannot
be enforced independent without Section 15 of the Customs Act.
5. Learned Advocate submits that the reassessment proposed and carried
out by the respondent is not proper or correct; Section 17 only permits
such re-assessment of the duties already self-assessed in terms of the Bill
of Entry (Electronic Integrated Declaration) Regulation, 2018; Regulation 4
thereof does not permit the reassessment of the new impost under Section
17 of the Act; reassessment contemplated under Section 17 (4) of the Act
mandates issue of an order within fifteen days of the filing of the BE; as
the same has not been done the said reassessment should fail; Section 68
of the Act mandates clearance of the goods by the proper officer upon
payment of the duties, interest and other charges; Section 72 provides
power to the proper officer to demand the duty; hence, action of the
respondent to propose and confirm the reassessment, demanding ADD is
contrary to law and cannot be sustained.
6. Learned Advocate submits that the reasonable belief recorded by
the proper officer in para 6 to 8 of the seizure memo, invoking regulation 3
of the BE (EID) Regulation for non-furnishing of the ADD notification in
column No. 19 of the check list and for not making any attempt to correct
6
the self-assessment and thus, assume that the appellant sought to evade
the payment of the ADD wilfully involving only a interpretational dispute
renders the very seizure improper and illegal, particularly when the goods
are still lying with the licensed public bonded warehouse awaiting
clearance from the proper officer. Learned Advocate submits further that
the respondent confiscated the goods under Section 111 (m) of the Act,
read with regulation 3 of the BE (EID) Regulations, 2011 and holds that
they knowingly attempted to remove the goods from the warehouse
without payment of ADD contrary to the terms of such permission for
removal from a warehouse; this finding is not even alleged in the Show
cause Notice; it is not the case of Revenue that the value or any other
particulars concerning the said goods did not correspond with the entry
made under the Act; therefore, confiscation under Section 111 (m) of the
Act is not legally sustainable; he relies upon the decision of the Hon'ble
Mumbai Bench of the Tribunal in the case of Lexmark International P. Ltd.,
reported in 2011 (274) E L T 556 (T).
7. Learned Advocate submits also that the learned Commissioner finds
that the appellant-importer, in spite of being educated both by the
customs and by the officers that ADD is attracted on the imported goods
warehoused, knowingly concerned themselves in the act of non-payment
of ADD, rendering the goods liable for confiscation and penalty under
Section 112 (a) of the Customs, Act 1962; the finding is arbitrary and
does not meet the requirements of the express provisions contained in
Sections 112, 114 A and 114 AA ibid; notice was issued for reassessment
on a misplaced interpretation of the provisions of the law.
8. Learned Advocate submits further that the learned Commissioner
wrongly concluded that the provisions of Section 110 (2) of the Customs,
Act 1962 are not attracted, as far as the time limit of issue of Notice is
concerned, since the matter was pending before the High Court by way of
WP moved by appellants; the authority failed to see that no stay was
granted by the High Court restraining the respondent from taking any
further action in the matter; WP itself was disposed of on 01.03.2018
7
observing that there was sufficient time available to the revenue to issue
the notice as provided under Section 110(2) of the Act and if not issued
they will release the goods to the petitioner. He submits that the above
finding contrary to the judgment passed in the WP as well as plethora of
judgments passed by the Supreme Court and High Courts; he relies upon
the case of A.S. Enterprises reported in 2016 (337) E L T 321 (MAD) and
Board's circular dated 19.02.2013.
9. The Learned counsel for the appellant-importers, alternatively submits,
without prejudice to any of the grounds taken by them on merits of non-
applicability of the impugned ADD notifications to them, that the goods in
question are further worked out and are covered by a different notification.
10. Adverting to the Revenue appeal (No.41403 of 2019), Learned
advocate submits that there are two grounds raised in the appeal of the
revenue that interest under Section 28 AA has not been demanded in
respect of the goods covered by ex-bond BE no. 3056014 dated
31.08,2017 and that penalty under Section 114 A has not been imposed in
respect of the other BE no. 6798264/21.09.2016. He submits that Ground
no. 1 above raised by the revenue is not legally maintainable in as much
as the proposal made was only to reassess the goods still lying in the
warehouse and therefore question of demand of any interest under Section
28 AA does not arise at all, as there was no delayed payment of duty.
Moreover, the notice itself did not propose any such demand of interest.
As regards, the other ground, he submits that there is no merit in the
invocation of Section 28 (4) of the Act against them for the various
grounds brought out herein above and accordingly, penalty under Section
114 A is not sustainable.
11. Learned authorised Representative for the Revenue reiterates the
findings of OIO in respect of Appeal No. 41022 of 2019 and the grounds of
appeal in respect of appeal No.41403 of 2019. He submits, inter alia, that
8
(i). Sub Section 4A of Section 8(B) (on power of Central Government to
compose Safeguard Duty) and Sub Section 8 of Section 9(A) of the
Customs Tariff Act, 1975, clearly envisages that the previsions of the
Customs Act, 1962 and the rules and regulations made there under,
including those relating to the date for determination of rate of duty,
assessment, non-levy, short levy, refunds, interest, appeals, offences and
penalties shall, as far as may be, apply to the duty chargeable under this
section as they apply in relation to duties leviable under that Act.
(ii). A plain reading of section 9A (1) of Customs Tariff Act read with
section 12 (1) of Customs Act makes clear that anti- dumping duty is
one of the duty of Customs and further, any interpretation with rules or
statutory provisions pertaining anti -dumping duty should not be in
contrast with provisions of Customs Act; therefore, section 15 of
Customs Act is relevant; section 15(1) (b) makes clear that the date for
determination of rate of duty for the goods cleared from a warehouse
under section 68 is the date on which the bill of entry for home
consumption in respect of such goods is presented
(iii). The appellant/importer 's reliance on Rule 13 and 20 of Customs
Tariff Rules, 1995 is of no avail as they deal with implementation of the
provisional and final notifications,
(iv). The case laws relied upon by the appellants are not applicable as
the facts can be distinguished.
(v). Importers knowingly concerned in the act of non-payment of Anti-
dumping duty thereby attracting penal provisions under Section 114A;
confiscation of goods covered by Bill of Entry 3056014 dated
31/08/2017 is legal s appellant has knowingly attempted goods from
warehouse without payment of ADD; penalty imposed is also correct.
9
12. Heard both sides and perused the records of the case. Brief issue
that requires consideration in the instant case is as to whether Anti-
Dumping duty is leviable on clearance of goods which have been imported
and warehoused before the issue of Notification imposing Anti-Dumping
Duty is issued; whether confiscation and imposition of penalty is justified
in respect of appeal No. 41022 of 2019 and as to whether learned
Commissioner erred in not demanding interest under Section 28 AA for the
goods covered by Ex-bond BE No. 3056014 dated 31.08,2017 and in not
imposing equal penalty, under Section 114A, for goods covered by BE no.
6798264/21.09.2016, in respect of appeal No. 41403 of 2019.
13. We find that a perusal of the relevant sections would be immense
use while dealing with the facts of the case which are extracted as
under:
"SECTION 3. Levy of additional duty equal to excise duty, sales tax, local
taxes and other charges. -- (1) Any article which is imported into India shall,
in addition, be liable to a duty (hereafter in this section referred to as the
additional duty) equal to the excise duty for the time being leviable on a like
article if produced or manufactured in India and if such excise duty on a like
article is leviable at any percentage of its value, the additional duty to which
the imported article shall be so liable shall be calculated at that percentage
of the value of the imported article".
"SECTION 9A. Anti-dumping duty on dumped articles. -- (1) Where [any
article is exported by an exporter or producer] from any country or territory
(hereinafter in this section referred to as the exporting country or territory)
to India at less than its normal value, then, upon the importation of such
article into India, the Central Government may, by notification in the Official
Gazette, impose an anti-dumping duty not exceeding the margin of dumping
in relation to such article.
............
................
(8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act."
"SECTION 15. Date for determination of rate of duty and tariff valuation of imported goods. __(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, -10
(a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section];
(b) in the case of goods cleared from a warehouse under section 68, on the date on which a bill of entry for home consumption in respect of such goods is presented under that section;
(c) ..........."
"SECTION 17. Assessment of duty. __ (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self- assess the duty, if any, leviable on such goods.
(2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary.
(3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, exporter or such other person shall produce such document or furnish such information.
(4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods."
14. On a perusal of the above, it is very clear that Section 15 applies squarely to goods warehoused under Section 68 as it applies to goods presented for clearance for home consumption under Section 46 of the Customs Act. Sub-section (8) of Section 9A of the Customs Tariff Act, 1975 which provides that provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non- levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act.
1115. We find that Ld. Commissioner has held as under:
"22.2 The sub-section (1) of Section 9A of the Customs Tariff Act, which provides for the levy of the ADD says, "Where any article is exported by an exporter or producers from an y country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value then upon the importation of such article into India the central government may by notification in the official gazette impose an anti-dumping duty not exceeding the margin of dumping in relation to such articles.
22.3 The said statutory provision makes amply clear that the notified article is liable for anti-dumping duty upon importation into India. Hence, the term "importation" gains the significance and the term 'importation' has not been defined under Customs Act.
22.4 As per the Oxford English dictionary the word "importation"
refers to bringing of goods or services into a country from abroad for sale or any other purpose. Therefore, in the prevailing context, it elaborately includes the landing of the goods, and final clearance from customs area. Thus, unless, the goods move out of the customs declared import area, it does not attain finality of the importation. While discussing the said statutory provision, the importer has brought out the term, "import and imported goods" as defined in Customs Act but they are not referred in the said statutory provisions and as such, they are not relevant here.
22.5 Merely warehousing of the goods does not complete the process of the importation. In practice, the warehoused goods may be exported again to a third party, may be sold to other party, transferred under bond to other etc. Therefore, the importation of subject warehoused goods attains the finality only when their ex-bond bill is given out of charge by the proper officer. Therefore, the contention of the importer that the subject goods have been already imported and as such, the anti-dumping duty cannot be imposed is contrary to provisions of sub-section (1) of Section 9A of the Customs Tariff Act.
..................
22.9 Thus, section 9A(8) of the Customs Tariff Act thus brings the provisions of Customs Act for implementation of anti-dumping duty notifications. Therefore, it is understandable that the provisions of Customs Act cannot be violated while implanting the anti-dumping duty notifications issued under Customs Tariff Act. Section 9A(8) discusses various aspects such as the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be. The date for 12 determination of rate of duty is unambiguously covered in the said section and as such, it should be incoherent with the provisions of Customs Act 1962. At this stage, the relevance of the Section 12 and 15 of Customs Act 1962 requires to be discussed. The section 12 (1) of Customs Act reads as under:
"(1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975)], or any other law for the time being in force, on goods imported into, or exported from India.......".
Therefore, a plain reading of section 9A (1) of Customs Tariff Act read with section 12 (1) of Customs Act makes clear that anti-dumping duty is one of the duty of Customs and further, any interpretation with rules or statutory provisions pertaining anti- dumping duty should not be in contrast with provisions of Customs Act."
16. We also find that Ld. Counsel for the appellant-importer has relied upon the various decisions as under:
(i) CCE Hyderabad Vs Vazir Sultan Tobacco Co Ltd.1996 (83) ELT 3 (SC)
(ii) SNEH Enterprises Vs CC New Delhi 2006 (202) ELT 7 (SC)
(iii) CC Bangalore Vs G.M. Exports 2015 (324) ELT 209 (S.C.)
(iv) CC Chennai Vs Suja Rubber Industries2002 (142) ELT 586 (Tri.-Chennai)
(v) M.K.P. Fashions Vs CC (Port) Kolkata2004 (174) ELT 45 (Tri.-Kolkata)
(vi) CC & C.Ex Ahmedabad Vs Ashima Fabrics 2003 (154) ELT 530 (Tri.-
Mumbai)
(vii) CC Lucknow Vs J.M. Agarwal Tobacco Company 2016 (341) ELT 346 (Tri.-
All.)
(viii) CC ICD New Delhi Vs Chandra Prabhu International Ltd. 2014 (302) ELT 168 (Del.)
(ix) Lexmark International (I) P.Ltd. Vs CC (Imports), Nhava Sheva 2011 (274) ELT 556 (Tri.-Chennai)
(x) A.S.Enterprises Vs CC Chennai 2016 (337) ELT 321 (Mad.)
17. We find that facts and circumstance of the cases cited by the appellants are different and quite distinguishable and therefore the ratio cannot be applied. We find that in view of Section 3 of the Customs Tariff Act, 1975, Antidumping Duty is to be construed as Customs duty and therefore in view of the amendment that was carried out in 2009 all the provisions of Customs Act and the Rules made thereunder are squarely applicable to Antidumping Duty and as such in case of 13 warehoused goods duty applicable as on the date of clearance from warehouse is to be recovered in terms of Section 15 of the Customs Act, 1962. We find that ratio of case of CC Chennai Vs Suja Industries - 2002 (142) ELT 586 (Tri.- Chennai) and Indo Ram Synthetics (I) Ltd. Vs CCE Mumbai 2003 (156) ELT (Tri.-Mumbai) are not applicable as the same are rendered before the amendment in sub-section (8) of Section 9A of Customs Tariff Act, 1975 in 2009. Therefore, we find that Ld. Commissioner has correctly held that ADD is payable by the appellants.
18. We further find that the appellant-importers have argued that as they have warehoused the goods that have been put to the disadvantage forcing the importers to have imported during intervening period i.e. after the goods have been imported and warehoused and the same are cleared from the warehouse. However, we find that taxation does not work on the principle of the equity, if the appellant has availed the facilities under the warehousing provisions, they have to bear with the associated disadvantages, if any. It is not open for the appellant- importer to claim best of both ends. We find that importers have also submitted that Ld. Commissioner has distinguished between 'import' and 'importation' relying on the definition or the meaning contained in Oxford Dictionary instead of going by the provisions of the Customs Act. We find that observations of Commissioner in distinguishing between 'import' and 'importation' are at best superfluous and do not in any way help or harm the conclusions arrived at.
19. We find that appellant submits that the goods have been warehoused and cleared after filing the Bill of Entry which were duly checked by the officers and therefore no demand can be made. We find that this argument is spurious in so far as duty demand is concerned. We find that when all the provisions of Customs Act are made applicable to Antidumping Duty, Section 28 is also squarely applicable. Therefore, we do not find any infirmity as far as demand of duty is concerned. However, we hold that interest, if any, for the delayed payment, 14 interest is to be paid from the date of ex-bonding by the appellant- importer as payment of interest is consequential to the demand of duty in respective manner.
20. However, we find that confiscation and imposition of redemption fine are not warranted as here was nothing that the appellant-importers have consciously suppressed or misrepresented. If ADD escaped assessment, the department is free to demand the same as per provisions of Customs Act, 1962. However, for the same reason, goods cannot be confiscated and penalty cannot be imposed. Therefore, we set aside the confiscation of the goods, imposition of redemption fine and various penalties. For this reason, we find that department appeal has no merit and needs to be rejected except on levy of interest under Section 28AA on ADD of Rs.79,55,066/- in respect of goods cleared vide BE No.3056014 dt. 31.08.2017 which we have already upheld.
21. In the result,
(i) Appeal No.41022 of 2019 filed by M/s. LSML Private Ltd. (Appellant Importer) is partially allowed by upholding duty demand, interest and setting aside confiscation, redemption fine and penalties.
(ii) Revenue Appeal No.41403 of 2019 is dismissed in above terms.
(iii) MA No.40122 of 2021 filed by appellant-importer stands disposed of accordingly in terms of above order.
(Pronounced in court on 15.02.2022) (RAMESH NAIR) MEMBER (JUDICIAL) (P. ANJANI KUMAR) MEMBER (TECHNICAL) gs