TMI Blog2018 (1) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... et removal from the factory - it is proper to remand the matter back to the adjudicating authority for denovo consideration and to arrive at the net quantity of duty free imported soda ash that may have been removed outside the factory for the limited purpose of calculation of net duty and without liability. Penalty - Held that: - while differential customs duty will definitely accrue in respect of the quantities of duty-free imported soda ash that may have been removed in violation of import conditions, nevertheless, no malafide can be attributed to such clearances - penalties imposed on the appellant under section 114A ibid will not sustain and is therefore set aside. Appeal allowed in part and part matter on remand. - C/535 & 538 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash had been removed to various persons in the above manner from the stock of soda ash imported duty-free, out of the total quantity of 2980 MTs imported duty-free for the years 2004 05 to 2007-08. It was also alleged that while clearing such duty-free soda ash to various parties, appellant had raised invoices showing that such clearances are made out of duty paid soda ash. Accordingly, proceedings were initiated by way of issue of show cause notice dated 7.5.2008, inter alia proposing to demand customs duty of ₹ 31,98,803/- with interest and imposition of penalties under various provisions of Customs Act. The show cause notice also proposed imposition of penalty on Shri V. Jothi, General Manager cum Authorized Signatory of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0410087404 dt. 7.2.2007 394851 / 9.2.2007 and 403706 / 22.2.2007 990 (495 + 495) 368.08 2006 2007 2007- 08 Total for 10.12.2004 to 31.8.2007 1119.39 2.2 The reason for removals of soda ash was only for returning soda ash borrowed on loan basis from neighbouring units due to acute scarcity of the raw material during the impugned period. Similarly, on some occasions, appellant has lent soda ash to other glass manufacturing units. 2.3 Ld. counsel submits that bulk of the clearances made by them on soda ash were only towards replenishment of the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis was kept in the same storage area together with the imported duty-free soda ash as also the soda ash that was obtained on invoices from local glass manufacturers. Hence all the soda ash obtained from various sources had all got merged and the department cannot insist on first come first out basis calculation by arriving at the quantum of duty-free soda ash that may have been removed on duty paid invoices outside the factory. In any case, removal of soda ash was not done clandestinely or for evasion of duty liability. The said removals were only returned / replenishment of soda ash obtained from local glass manufacturers due to acute scarcity. Hence all these clearances were made of bonafide reasons. 2.7 During the period 4.11.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to various persons from 10.12.2004 to 31.8.2007. 3.2 Ld. AR pointed out that as the duty-free materials have been imported vide Notification No.93/2004-Cus. and Notification No.43/2002-Cus., there is a stipulation of transfer / sale of raw material and hence any violation of such condition will require the appellant to pay up the duty forgone and the quantity of such raw material has may have been sold or transferred. 4. Heard both sides and gone through the case records. 5.1 It is not disputed that the appellant acquired the raw material soda ash, used in the manufacture of glass, from various sources, by duty-paid imports, and also without payment of duty under Advance Licenses / Advance Authorizations. Appellant has also repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration and to arrive at the net quantity of duty free imported soda ash that may have been removed outside the factory for the limited purpose of calculation of net duty and without liability. Needless to say, the appellant shall be afforded a reasonable opportunity of presenting their case, including production of additional documents/evidence if any. The adjudicating authority will also take into consideration the submissions made by the Id. counsel for the appellant at paras 2.1 to 2.10 supra and the submissions of Id. AR in paras 3.1 and 3.2 above. 5.3 As regards penalty, we find that there is no allegation of clandestine removal of the soda ash. In fact all the removals appear to have been removed under invoices and properly accou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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