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2019 (12) TMI 295 - AT - CustomsBenefit of exemption - misdeclaration of goods - import of Natural Gold Ore Concentrate - SCN was issued alleging that the appellants had not imported the ‘Natural Gold Ore Concentrate’ but had artificially mixed gold and various materials like mud, cement etc to artificially create something that could be camouflaged as ‘Natural Gold Ore Concentrate’ - HELD THAT:- The appellants are claiming benefit of Notification No. 12/2012-CE and the notification exempts ‘Ores’ falling under heading 2601 to 2617 from Central Excise duty. Note-2 of the Chapter 26 defines the scope of the term ‘ore’ for the purpose of this chapter. It is apparent that there is no minimum or maximum percentage specified for gold content in gold ore. Different literature may suggest different values, however, this fact has no significance in the present proceedings as term ‘Ore’ is defined in the tariff itself. The said definition does not contain any maximum or minimum value of metal or non-metal. Learned Counsel further raised the issue regarding use of word ‘usually’ at various places in the report of Professor at IIT, Bombay. It needs to be appreciated that ‘Ore’ is naturally occurring substance and therefore cannot be any specific parameter for ‘Ore’. The composition of ore and contents of various materials in gold ore may vary from place to place and content to content. Therefore, the term ‘usually’ appearing in the report of the Professor of IIT is not incorrect and we need to appreciate that variation in the proportions of contents is noticed in naturally occurring minerals from place to place. The quality of composition of Ores cannot be standardized as they are naturally occurring substances. Moreover the tariff/HSN does not prescribe any minimum or maximum limit in the definition of ‘Ore’. Even if the samples answered to all physical and chemical parameter of ‘Ore’, the same does not qualify to be ‘ore’ for the purpose of the Tariff or the notification Confiscation - imposition of Redemption fine and penalty - HELD THAT:- The confiscation has been ordered under section 111(d) and (m) of the Customs Act 1962. Confiscation upheld - Redemption fine of ₹ 60 lakhs has been imposed on the goods of declared value of ₹ 1.32 Crores - Considering the facts and circumstances of the case and the fact that duty evaded in this consignment is approximately 18 lakhs, we reduce the said fine to ₹ 15 lakhs. The penalty of ₹ 10 lakhs, imposed under 112(a) in respect of the confiscated consignment is also upheld. Time Limitation - HELD THAT:- Taking of samples of previous consignment, if any, for chemical/physical testing or valuation purposes, does not help the case of the appellant, if the fact that the said goods were produced in a workshop by mixing gold, sand and other materials is suppressed. Thus the fact that samples were taken of earlier consignments or not, does not affect the outcome of this case. Even if those samples were taken and tested it might not have been possible to detect that the same were produced in a workshop and were not of natural origin. In view of the fact that an elaborate mechanism for hoodwinking Customs was devised by the appellant the intention to evade the customs duty cannot be doubted - This is a case involving fraudulent intentions and actions. In view of above the demand of duty and interest on past consignments is also upheld. The penalty under section 114A, of the Customs Act 1962, in respect of past consignments is also upheld.` Penalty u/s 114A of CA imposed on Shri Sanjay Patel - HELD THAT:- Hon’ble High Court of Gujarat, in the case of Jai Prakash Motwani [ 2009 (1) TMI 501 - GUJARAT HIGH COURT ], has held that when penalty has been imposed on the firm, separate penalty on partner cannot be imposed - Penalty set aside. Appeal allowed in part.
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