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2013 (9) TMI 219 - AT - CustomsBenefit of Notification NO. 21/2002 - Excess Quantity Shown - Not fulfillment of the End Use Condition - Confiscation of Gods – Interest and Penalty - Assesse were importing “Naphtha” falling under CTH 27101990 of the first Schedule of the Customs Tariff Act, 1975 by availing benefit of Notification NO. 21/2002 - The appellant failed to declare the actual quantity of Naphtha in the end use certificate, the excess quantity was detained - Department was of the view that they have imported Naphtha in violation of the condition of the Notification NO. 21/2002-Cus as amended by way of showing excess quantity as consumed when compared to actual quantity consumed by submitting false End Use Certificate and thereby evaded Customs duty on suppressed quantity of Naphtha - Held that:- Confiscation and penalty was not justified in the case – thus confiscation of Naphtha and order for redemption fine and penalty imposed under Section 114 of Customs Act, 1962 were set aside - The appellants were not denying the duty was payable therefore, they have discharged the duty liability rightly - The appellants did not declared the correct quantity of the balance of unutilized Naphtha - Therefore, they were rightly liable to pay interest on the quantity which was not disclosed while furnishing End Use Certificate - Hence the order of appropriating interest amount in case of duty paid on 33950 MT of Naphtha was upheld. The appellant could not use certain quantity of the entire amount of Naphtha imported subsequently since they found generation of electricity not viable by use of Naphtha and found more viable by using the natural gas - This was not a case of levy or non levy of duty by reason of misstatement or suppression of facts etc. but a case of not fulfilling the end use condition of the exemption notification - Penalty cannot be imposed under Section 114A of the Customs Act since there was no mis-declaration etc - The department had proceeded on the sole ground that the appellants have mis-declared quantity of naphtha remaining in stock by providing an incorrect consumption statement.
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