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2019 (11) TMI 622 - AT - CustomsImport of certain capital goods under EPCG Scheme - concessional rate of duty - N/N. 97/2004- Customs - Inclusion of freight charges - extended period of limitation - HELD THAT:- The AMW paid the Freight forwarder an amount of ₹ 4,32,98,915/- where as in the 15 Bills of entries they included freight amounting to ₹ 1,60,69,376/- only. As a result an amount of ₹ 2,92,35,480/- escaped inclusion in the assessable value. The reason given by AMW is that at the time of filing bill of entry in first 10 cases they were aware of the actual freight charged by the freight forwarder whereas in last 5 Bills of entries they were not aware of the actual freight payable to the freight forwarder. The reason cited was that the variable cost based on CAF/BAF was not known. The method of calculating freight agreed by AMW with PLIL was very clear. It can be seen that the only variable in the cost is the currency adjustments which simply converts all cost payable in US Dollar terms into Rupees. Thus it won‟t be correct for AMW to say that the cost of transport was not immediately available to them. The currency price are available directly on minute to minute basis every day. More over it is seen that out of total cost of ₹ 4.32 Crores paid to the freight forwarder. The appellant had included only ₹ 1.6 crores, in 15 consignments. Even if the actual freight of first 10 consignments was known on actual basis it could not have been its 40% of the total freight for 66% of the total consignments. The documents on the basis of which they had included freight on actual basis were however not available with AMW. Benefit of EPCG Scheme denied on the enhanced value of the imports - HELD THAT:- The impugned order denies the benefit of the EPCG scheme on the ground that the Chapter 5 of the Foreign Trade Policy requires the importer to produce license for debit by the proper officer of customs at the time of clearance. It has been argued in the impugned order that since the said amount was not declared at the time of import the benefit of scheme cannot be extended to the appellant. We do not find any merit in this argument -It is a fact that the appellant have EPCG License containing a specific amount. Therefore, if the value is enhanced then AMW is entitled for benefit to the extent the enhanced value is covered in the EPCG License. It has been argued by the Ld. Counsel for AMW that since the assessment has not been challenged, demand under section 28 cannot be raised - HELD THAT:- The demand can be raised under section 28 even if challenging assessment. Consequently this argument of Ld. Counsel for AMW is rejected. Extended period of limitation - HELD THAT:- The appellant have paid significantly higher amount to the freight forwarder as freight. However, in 15 Bills of entry filed by AMW only 40% of the freight has been included in the assessable value. When the agreement and terms of payment are crystal clear the actions of importer are clearly intended to evade taxes. When documents on actual freight paid were demanded, Ld. Counsel failed to produce the same. In these circumstances, we find that it was a specific modus operandi devised by AMW to defraud the Government and therefore, extended period of limitation is rightly invoked in the instant case. Confiscation of the goods already cleared by the AMW - HELD THAT:- The bond executed by the AMW is not for production of goods but for fulfillment of export obligation and to pay duty in case of failure to fulfill export obligation - The goods cannot be confiscated, even if, the same are liable for confiscation. Appeal allowed in part.
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