TaxTMI 
TaxTMI 
2018 (3) TMI 360
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....les on which the supporting manufacturers had taken the input credit. As the appellant appeared to have availed the double benefit under Notification No.203/92-CUS dt. 19.05.1992 and violated para V(a) of the said notification and also failed to fulfill export obligation within specified period, a show cause notice was issued on 22.08.1995. 2.2 The matter was decided by the then Commissioner of Customs, Amritsar vide O-I-O No.70/97 dt. 31.10.1997 wherein he passed the orders as under: i) "I order the payment of Basic Custom Duty amounting to Rs. 12,08,520/- on 357.445 MT of HMS scrap valued at Rs. 15,70,597/-. I also order the payment of Rs. 3,57,445/- as Additional Duty of Customs as leviable at the rate of Rs. 1000/- PMT on 357.445 MT under Notification No.44/93CE dt. 28.02.1993. ii) I order confiscation of 357.445 MT of HMS Scrap valued at Rs. 15,70,597/- under Section 111 (d) of the Customs Act. Since the goods are not available, I impose a fine of Rs. three lacs only in lieu of confiscation in terms of Section 125 of the Customs Act, 1962. Interest under Section 28AA will be separately payable from the relevant date i.e. the date of clearance. iii) I impose a personal pena....
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....ed by the Deputy Commissioner, C.Ex. Division, Ludhiana vide letter dt. 18.09.2003. However, there was no condition of such consumption under Notification No.203/92-Cus dt. 19.05.92. I find that Noticee has placed on record such consumption certificate as counsel of the Noticee vide his letter dt. 17.11.96 admitted that Noticee could not fulfil the export obligation due to circumstances beyond their control and undertook to pay the duty in terms of Notification No.83/90-Cus dt. 20.03.90. In this case, I find that Noticee cannot change their stand according to the Circumstances of the case, but has to act strictly as per the Notification under which they opted to avail the benefit at the time of import. As per bill of entry basic customs duty was calculated on the subject scrap under Notification No.46/93 dt. 28.02.93 and additional duty was calculated under Notification No.44/93 dt. 28.02.93 which were the effective rates of duty applicable at the relevant time. The Noticee now intend to pay duty as per their letters referred above in the absence of fulfilment of export obligation under Notification No.83/90-Cus dt. 20.03.90 as amended wherein the condition was that the melting scr....
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....Section 111 (d) of the Customs Act. Since the goods are not available, I impose a fine of Rs. 3,00,000/- Rs. three lacs only) in lieu of confiscation in terms of Section 125 of the Customs Act, 1962, Interest under Section 28AA will be separately payable from the relevant date i.e. the date of clearance. iii) I impose a personal penalty of Rs. 2,00,000/- (Rs. two lacs only) on M/s Thapar Ispat Ltd under Section 112(a) of the Customs Act, 1962." 2.6 The appellant again filed an appeal against the above mentioned O-I-O before this Tribunal which vide its Final Order No.C/640/2008-Cus dt. 24.11.08 gave the following findings and set aside the impugned order and remanded the case for fresh decision by the jurisdictional Commissioner: "We have carefully considered the submissions made from both sides. It is not in dispute that what was permitted under the DEEC licence was import of re-rollable scrap and what was imported is HMS. Under these circumstances, it will not be proper to extend the benefit of DEEC benefits for the said goods and also enforce the condition imposed under the concerned notification, Therefore, we find that the request of the Ld. Advocate for permitting them to ....
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.... the findings in the order of the adjudicating authority and stressed that condition to the Notification need to be strictly complied as has been held by the Hon'ble Supreme Court in numerous judgments. 5. Heard the rival submissions and perused the records. 6. We find that the Cd. Commissioner has adjudicated the matter pursuant to CESTAT final order dt. 24.11.2008, wherein it was remanded for the second time. The main contention of the appellants in their pleadings is that they should be allowed the benefit of Notification No.83/90-Cus dt 20.03. 1990. We find that the Ld. Commissioner in his order has examined this request of the appellants for reassessment of the imported goods under the Notification No.83/90-Cus, which grants concessional rate of customs duty. We also find that the notification claimed by the assessee has certain conditions for allowing such a concessional rate of duty. The notification lays down that specified iron and steel melting scrap imported for use in electric arc or induction furnace is eligible for a lower rate of customs duty provided the procedure specified therein is followed. The procedure mainly requires that :- i) The importer would execu....
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....p in a limited time is a substantial requirement and a lapse therein could not be brushed aside simply on the ground of being technical in nature. The object and purpose of the notification could not be met unless the imported scrap was put to use in an expeditious manner for production of output. Since the facts and circumstances of this case point out that the delay in consumption was uncalled for, the noticee has failed to fulfill the utmost essential condition of the notification. 19. I also observe that the scheme prescribed under the notification is well-intentioned and is neatly structured. An importer who wishes to import the specified type of melting scrap must declare to the Customs that he binds himself to use the scrap in a given manner. Anyone who has an objection in furnishing of this bond cannot be allowed the benefit of concessional duty though he might later use the imported scrap in his inductions furnace on/y as intended in the notification and that he will produce to Customs an end use certificate from the Central Excise. Similarly, he has to undertake to pay differential duty for the unused portion of scrap. The mute point is whether this is only a technical p....
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.... goods be not diverted or utilized for some other purpose, on the guise of the exemption notification. Detailed procedures have been laid down in Chapter X so as to curb the diversion and mis-utilization of goods which are otherwise excisable. The plea of "substantial compliance" and "intended use" is, therefore, rejected for the reasons already stated. " 8. The appellants have relied on the judgment in the case of CCE, Bangalore Vs. Srikumar Agencies (supra) to argue that the Ld. Commissioner wrongly relied upon the judgment of Hon'ble Supreme Court in the case of CCE New Delhi Vs. Hari Chand Shri Gopal (supra). We do not find force in the said argument of the appellants because Ld. Commissioner after carefully narrating the facts has correctly applied the judgment, which is in the context of extending the benefit of an exemption notification by carefully looking at its objects and purposes and hence directly applicable to the facts of this case. 9. The appellants have also relied on the judgment of Essar Oils Ltd Vs. CCE, Rajkot (supra) to argue that substantive benefit should not be denied only on the ground of non-fulfilment of said procedural conditions. We find that Ld.....
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....he credit would have been available if CVD had been levied. In the said case involving central excise duty, the appellants and buyer unit were both owned by the same assessee. In that background, the Tribunal held that the situation was revenue neutral. The present case involves the import of goods and if the proposition by the appellants is accepted, that would defeat entire purpose of Cenvat Credit Scheme. Besides, the situation is not comparable at all with the facts in the case of Mafatlal Industries Ltd. (supra). The appellants have also relied on the judgment of CCE Vs. Textile Corpn, Marathwada Ltd. (supra) and CCE Vs. Jamshedpur Beverages (supra) in support of the same argument. However, cited cases pertain to Modvat credit of central excise duty and the present case pertains to the payment of CVD on imported goods. The argument of the appellants that CVD is being demanded after long litigation and hence the expectation of revenue neutrality arises is without force as the CVD on the imported goods is required to be paid before clearance and if not paid before clearance cannot be waived on the ground of revenue neutrality. There is no provision in law for such a waiver. 13.....