Home Case Index All Cases Customs Customs + AT Customs - 2022 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (12) TMI 484 - AT - CustomsProject import - contract is registered with the customs authorities after filing an into bond Bill of Entry but before filing of an ex-bond bills of entry for home consumption - Exemption from payment of custom duty - Mega Power Project - capital goods required for setting up the project - change in classification at the time of ex-bonding from the warehouse for the home consumption - HELD THAT:- The Adjudicating Authority/Commissioner (Appeals) denied the exemption available for the project import applying the regulation 5 whereby it was interpreted that as per the said regulation of Project Import Regulation, 1986 (PIR, 1986) the assessee’s is required to register the project before the commencement of importation in other word the project should be registered before the goods entered the territorial border of India. In the present case the facts are not under dispute that the goods under the project import have been warehoused under into bond bill of entry thereafter before clearance of the goods from the warehouse under ex-bond bills of entry the project has been registered. In the instant case it is not in dispute that all the contracts and purchase orders in question were registered by the appellant before an order of clearance of home consumption was passed in all 63 bills of entry. Therefore, there are no contravention of Regulation 4 and/or 5 of the PIR, 1986 - Therefore, merely because the project was registered prior to clearance of goods for home consumption from warehouse there is no contravention on the part of the appellant and they are legally entitled for the exemption available to the project import. Change of classification to chapter 98.01 - HELD THAT:- There was no charge in the SCN regarding change of classification. Therefore, entire proceeding on the issue which is not flowing from the SCN is vitiated. It is settled law that an adjudicating authority cannot go beyond the scope of SCN. In view there of this finding of lower authority and the consequent conclusion drawn thereof are totally untenable and needs to be discarded at the threshold - Without prejudice we also find that since at the time of in bonding of goods in warehouse project was not registered obviously classification could not have been made under chapter 9801. In case of project import a specific tariff entry has been created under chapter heading 9801 even though the goods are otherwise classifiable in the respective head of individual item. When the project was registered and ex-bond bills of entry were filed the correct classification was 9801 only. Therefore, we do not find any error on the part of the appellant or there has been no mis-classification of goods. There is a force in the submission of he learned counsel, as regard the information gathered under RTI that at various customs ports even though the into bond bills of entry were filed under tariff item of individual goods but in ex-bond bill of entry the project import has been classified under CTH 9801 and benefit was allowed without raising any objection - the revenue’s contention that the appellant are not allowed to change the classification in the ex-bond bills of entry is absolutely incorrect and illegal. It is settled law that in case of warehousing goods at the time of ex-bond clearance for home consumption, the goods have to be re-assessed under section 2(2) of Customs Act, 1962 - Revenue has no authority to question the change of classification at the time of filing ex-bond bills of entry in the present case which is the correct one as compared to the classification declared in the into-bond bill of entry. Therefore, the revenue has wrongly restricted the benefit of PIR to the appellant. Confiscation of the goods - HELD THAT:- Since the appellant have availed the PIR benefit correctly and legally the confiscation being a consequential to the charge of the revenue shall also not be maintainable. Without prejudice, we find that it is an admitted fact that the goods were cleared from the warehouse and same were never seized and nor released provisionally on execution of any provisional release bond. In this position neither confiscation can be made nor the redemption fine can be made. Consequently, the penalty is also not sustainable - Since on the merit itself we have decided that the appellant is entitled for the benefit of PIR and their appeal against the common order of Commissioner (Appeals) succeeds there is no substance in the Revenue’s appeal and the same is not maintainable. The impugned orders are not sustainable and hence the same are set aside - Appeal allowed.
|