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2014 (12) TMI 693 - AT - CustomsWaiver of pre deposit - Evasion of duty - import of machinery for setting up of a plant to convert the skimmed milk to fermented milk under exemption notification - applicant have misdeclared the description of two consignments with an intention to avail undue benefit of concessional rate of customs duty under Notification 6/2006-CE and that the said importer had imported machinery which worked on the principles of heat exchange and were used for the purpose of sterilization, pasteurisation, incubation and dilution etc., which are excluded from the heading 8434. - Held that:- Plant has number of tanks and number of other machine some of which are interconnected. The plant also has a machine wherein they manufacture plastic bottles from granules and these plastic bottles are stored in plastic bottle storage tank and thereafter used along with filling and sealing machine and the milk is filled in the such bottles and packed. We have also gone through the printout of the correct SPE sheets as also the manipulated SPE sheets which were presented to the customs during clearance of the two consignments. We find that supplier has indicated certain HS code for each of the items. The manipulated SPE sheets had the same specification details but did not have these codes but the HSN Code was 8434 2000 in respect of all the items under the two bills of entry. We also note that the managing director or the Company has admitted the manipulation in his statement under Section 108 of the Customs Act. Shri Anil Choudhary also admitted the manipulation even though both of them have tried to put the blame on each other. We also note that Shri Anil Choudhary later on in email addressed to the managing director abroad has spoken about the manipulation being done and perhaps later on was removed from the service. Similarly, the invoice was manipulated. Prima facie we are of the view that the applicants have not made out a case for waiver of duty interest and penalties. During the hearing, advocate for the applicant has indicated that the unit is running into loss, though no documents in support of the same were produced. However, keeping in view the facts and circumstances of the case, we direct the appellant to deposit 50% of the duty demanded in cash within a period of six weeks. Further, the Bank guarantee for the 50% of the duty already executed by the applicant will be kept alive till the final disposal of the appeals. On payment of the said amount, there will be stay for recovery of Redemption fine, penalty and interest. While passing the said order, we keep in mind the Hon'ble Supreme Court decision in the case of Dunlop India. - stay granted partly.
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