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2013 (9) TMI 175 - AT - CustomsBenefit of Notification No. 43/2002 - Whether the benefit of Notification No. 43/2002 - Cus. and 46/2002-Cus available - Held that:- Compliance of specification regarding sucrose content in SION was a must - Otherwise, the purpose of restriction imposed by Public Notice dated 29/12/2002 will be defeated - the imported materials require to be used for the manufacture of export product - The understanding of the Commissioner that the SION norms served the twin purposes of protecting domestic cane growers as well as preventing dumping of substandard raw sugar into the country had to be approved - Therefore, import of sugar below 98.5% of sucrose content being in violation of SION cannot be treated as fulfilling the condition of the exemption notification 46/2002 - Validity of Lab report - Whether the lab report was containing 98.1% sucrose content and the same was manipulated to read as 98.9% - Held that:- The manipulation of figures 98.1% to 98.3% was done with malafide intention and to benefit the assessee - The daily analysis reports maintained by the assesses indicated the purity of the imported raw cane sugar only as 98.1% to 98.32% as duly noted by the Commissioner - This also gives credence to the fact that the sucrose content as per the customs lab report was only 98.1% which was tampered to read as 98.9% - The internal reports maintained by the assessee-company indicated the sucrose content as 98.1% to 98.3% - All these taken together along with other circumstantial evidences, clearly prove that the entries in the lab report and the sample register were tampered with by overwriting to make them read as 98.9%. Liability for manipulation - Who was the person or persons who were responsible for the manipulation of the Report - Held that:- The beneficiary of the tampering of the lab report on sucrose content was clearly the assessee and the consequences were to be faced by them - notwithstanding the fact that the actual person/persons had not been identified. Whether a demand under Section 28 can be made without the department challenging the finalization of provisional assessment - Held that:- Tampering of documents with intent to evade duty was involved, show-cause notice could be issued invoking the extended period of limitation reckoning the relevant date from the date of finalization of the provisional assessment - The fact of provisional assessment and subsequent finalization of provisional assessment are relevant in the context of determining the relevant date for the purpose of issue of show-cause notice under Section 28 - The relevant date had to be reckoned from the date of finalization of the assessment - Decided against assesse.
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