Benefit of concessional rate of SAD - Declaration of RSP - proof of payment of actual VAT on sale after import - High Sea Sales - Notification No. 29/2010-Cus. dated 27.02.2010 - time limitation - import of Ordinary Portland Cement falling under CTH 2523 2910 - HELD THAT:- The investigation revealed that the RSP of the cement per 50 kg during the disputed period was above ₹ 190/- and therefore, importer is not eligible to avail the concessional rate of CVD in terms of clause 1A(i) of Notification No. 04/2006-C.E. The letter of the Superintendent of Customs dated 06.09.2011 showed that the importer was not doing any manufacturing activity in the premises although the importer contended that he is engaged in the manufacture of hollow blocks/bricks. Since there is no manufacturing activity, it cannot be said that the cement was captively consumed. For this reason, the importer is not eligible to avail concessional rate of Duty under clause 1C of the Notification No. 04/2006-C.E. as an industrial consumer.
The consignments were seized and confiscated under the belief that it was not intended for retail sale and that the appellant-importer did not intend to discharge VAT on the imported goods. Such apprehension of the Department appears to be highly illogical and too premature. At the time of filing the Bills-of-Entry, the Department cannot assume events that are likely to happen later. If the conditions of the Notification are satisfied, the importer has to be given the benefit of the concession / exemption. The only condition stipulated in the Notification No. 29/2010-Cus. is that the RSP has to be declared on the pre-packaged goods, as required under the Standards of Weights and Measures Act/Rules - When the goods were in pre-packaged form and RSP affixed upon them, the condition required in the Notification stands satisfied at that stage of import. The Department cannot assume that the goods are imported with the intention for self-consumption only and proceed to deny the exemption.
The main ground for denying the exemption provided under various clauses of the Notification No. 04/2006-C.E. dated 01.03.2006, as amended, is that though the RSP is affixed as ₹ 190 per 50 kg bag on the imported goods, the appellants have sold the cement at a higher price. In paragraph 13 of the impugned order, it is stated that the expenses incurred by the importer in the nature of transportation, liner charges, handling charges, etc., when included in the assessable value, the cement will have to be sold at a higher rate than ₹ 190/-.
When RSP is declared on a pre-packaged commodity, the said price is the transaction value, unless there is evidence to show that it is not so. There must be some evidence to show that foreign supplier has received a higher amount. In the present case, the RSP declared is rejected stating that it is sold at a higher rate. In the absence of invoices to show that it was sold by the appellant at higher rate, the Department has proceeded to enhance the value on the basis of invoices of M/s. India Cements Ltd. The invoices of M/s. India Cement Ltd., their ER-I returns, etc., are seen produced by Department - The sale price of M/s. India Cements Ltd. for the cement cleared from the factory cannot be superimposed on the goods imported from another country.
In the present case, there is no sale invoice before us. Actually, there is no evidence to conclude that the appellant herein has sold the entire cement imported.
Time limitation - HELD THAT:- The demand cannot sustain on the ground of limitation.
The demand of SAD and CVD on enhanced value cannot sustain. The same are set aside. Consequently, the order of confiscation, levy of redemption fine and penalty cannot sustain and hence, the impugned order is set aside - Appeal allowed.