TMI Blog2018 (3) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... the information about availment of Modvat credit at the time of import of consignments at CFS - extended period rightly invoked. Appeal dismissed - decided against appellant. - C/182/2011 - A/62207/2017-CU[DB] - Dated:- 23-8-2017 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Devender Singh, Member (Technical) Sh. Rakesh Punj, Advocated - for the Appellant(s) Sh. A.K. Saini, AR - for the Respondent(s) ORDER Per: Devender Singh The appellant is in appeal against the impugned order. 2.1 The brief facts of the case are that M/s Thapar Ispat Ltd. imported 280.030 MT and 77.445 MT of HMS scrap and filed Bills of Entry Nos.465 dt 08.02.1994 and 488 dt. 17.02.1994 respectively for their clearance at Container Freight Station, Ludhiana under the Value Based Advance Licence No.149536 and DEEC Book No.088050/ both dt. 20.01.1994 under the Notification No.46/93-cus cit. 28.02.1993. In this way, they availed custom duty exemption of ₹ 11,77,947/- under Notification No.46/93-Cus and exemption of ₹ 3,57,445/- from additional duty under Notification No.44/93-CE dt. 28.02.1993. Later on, it was found that while fulfilling the export obligation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty on the inputs by the appellants. The Commissioner shall verify whether the duty payment has been reflected in the central excise records of the supporting manufacturer, In the result, we set aside the impugned order and remand the case for fresh' decision by the jurisdictional Commissioner who shall pass fresh orders after extending to the appellants a reasonable opportunity of being heard in person and putting forth their defence. 2.4 Accordingly, the case was again taken up for adjudication by the Commissioner and reports were called from jurisdictional central excise authorities regarding availment of Modvat credit facility by the supporting manufacturers of the appellant and after considering the submissions made by the appellant adjudicated the case vide O-I-O No.34/Cus/05 dt. 30.11.2005, While passing the orders, the adjudicating authority observed that : Noticee vide reply dt. 17.11.96 and 9.3.2001 has tried to project that Noticee is engaged in the manufacture of steel ingots having induction furnaces and has consumed the subject imported scrap within their factory premises and has also placed on record end use certificates from the jurisdictional Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration before the Assistant Commissioner of Customs binding themselves to pay on demand an amount equal to the duty leviable, on the imported material in respect of which the conditions specified in this Notification have not been complied with. Thus, as per this declaration also they failed to comply with the conditions of Notification No.2032/92-Cus dt. 19.05.92 they are required to discharge leviable duty in full. The Noticee failed to fulfil the conditions relating to the import and export obligation, the scrap valued at ₹ 15,70,597.00 is held to be unauthorized import for which the goods are liable to confiscation under Section 111 (d) and (m) of the Customs Act, 1962 The importer M/s Thapar Ispat Ltd are liable to penal action under Section 112 of the Customs Act, 1962 for misutilization of DEES scheme. 2.5 In view of the above discussions, the following order was passed : i) I order the payment of Basic Custom Duty amounting to ₹ 12,08,520/- on 357.445 MT of HMS Scrap valued at ₹ 15,70,597/-. I also order the payment of ₹ 3 57,445/- as Additional Duty of Customs as leviable at the rate of ₹ 1000/- PMT on 357.445 MT under Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported scrap had been imported wrongly against the DEEC book, the appellants had fulfilled the export obligation. He further submitted that the duty if payable at all should be asked in terms of Notification No.83/90-Cus. He contended that non-submission of end use certificate within 6 months cannot be a reason for denying the benefit of Notification No.83/90-Cus and that substantial benefit should not be denied only on the ground of procedural conditions. He relied on the following case laws: i). DHL Express (India) Pvt. Ltd. Vs. CC, Mumbai - 2014 (310) ELT 941 (Tri. -Mumbai). ii). CCE, Chennai. Vs. Bhagawandas Metals Ltd - 2012 (277) ELT 278 (Tri. -Chennai). iii). Commissioner of Trade Tax, U.P. Vs. Kajaria Ceramics Ltd. - 2005 (191) ELT 20 (SC) iv). Essar Oils Ltd. Vs. CCE ST, Rajkot - 2014 (309) ELT 336 (Tri. - Ahmd.) v). Sutures India Pvt Ltd. Vs. CC, Bangalore - 2009 (245) ELT 596 ( Tri. - Bang.) vi). Mafatlal Industries Ltd Vs. CCE, Daman - 2009 (241) ELT 153 (Tri. -Ahmd.) vii). CCE, Jamshedpur Vs. Jamshedpur Beverages - 2007 (214) ELT 321 (SC). viii). Commissioner of Cus. C. Ex. Vs. Textile Corpn. Marathwada Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions were critical for extending the benefit of the said notification. In this regard, we find that the object and purposes of the said notification have been correctly examined by the Ld. Commissioner in detail in Para 18-19 of his order, which are reproduced below. 18. One of the policy objective of Notification No.83/90-Cus dt. 20.03.1990 is that melting scrap imported into India at the cost of public exchequer in the form of a concessional duty should be expeditiously brought into the production cycle and used for manufacture of final products. For this purpose the notification mandates that imported scrap must be used within six months of import. However, if this is not possible, the importer must approach the Assistant Collector of Customs with a request for extension of time limit. Needless to say, the request has to be genuine and reasonable with proper explanation for delay. However if the Assistant Collection of Customs were to sense that request does not merit acceptance or that the explanation given therein is inadequate, the request could be rejected. In the instant case, the HMS was imported in February 1994 and the consumption certificate issued by Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the notification. 7. We also find that Cd. Commissioner has correctly placed reliance on the judgment of the five Member Bench of the Hon'ble Supreme Court in the case of CCE, New Delhi Vs. Hari Chand Shri Gopal 2010 (260) ELT 3 (SC). In the said judgment while considering whether the Chapter X procedure prescribed under Central Excise for transfer of duty free the goods, the Hon'ble Apex Court has held as under: 32 . These appeals have been preferred by the Revenue against the order dated 6-5-2008 passed by Tribunal at New Delhi, holding that the assesses are entitled to the benefit of Notification No.3/2001 -C.E and 6/2001-C.E, irrespective of the fact that the procedures under Chapter X were followed or not. The Tribunal expressed the view that the procedure laid down in Chapter X is meant to be followed only to establish the receipt of goods by the recipient unit and their utilization. 33.. ......................................... 34. We find it difficult to sustain the reasoning of the Tribunal that the procedure laid down in Chapter X, is meant only to establish the receipt of goods by the recipient unit and their utilization. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the adjudication order. We find that the appellants in the reply before the Ld. Commissioner had not disputed any facts. We also find that the Notification No.203/92-Cus was claimed by the appellants when they filed the bill of entry. The question has already been examined by the Tribunal while passing the Final Order dt. 24.11.2008. In this regard, the appellants have relied on the judgment of DHL Express (India) Pvt. Ltd Vs. CC, Mumbai (supra), CCE, Chennai Vs. Bhagawandas Metals Ltd. (supra) and Commr. of Trade Tax, UP. Vs. Kajaria Ceramics Ltd. (supra). In the said judgments, the impugned orders were held to be perverse as the facts were not correctly brought out or the conclusions were contrary to the admitted facts. We find that the instant case, such a situation does not exist and the impugned order has been passed strictly in compliance with the final order of the Tribunal dated 24.11.2008. 12. As to the question of levy of additional duty of customs (CVD) on the imported HMS, we do not find any merit in the contention of the appellant that CVD should not be demanded from them because they would be eligible to avail the Modvat credit from CVD. If that view is acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be compared with the finalization of the classification list. Besides, there was failure to comply with the declaration given in terms of Notification No.203/92-Cus dt. 19.05.1992. 14. The appellants have also relied on the judgment of Sutures India Pvt. Ltd. Vs. CC, Bangalore (supra) to argue that there was no mis declaration. In the said case, the assessee was classifying the sutures material under Chapter 90 and Chapter 30 and was claiming the benefit of custom duty notification. In that background, this Tribunal relying on the Hon'ble Supreme Court's judgment of Northern Plastic Ltd. - 1998 (108) ELT 549 (SC) held that classification of the goods and claiming exemption under particular notification is a matter of belief and cannot be called mis-declaration. The facts are different in the instant case as the appellant have knowingly opted for a notification to use the HMS under certain end use conditions about which there is no question of ambiguity or having a belief. Hence, the said decision does not help the appellants. 15. In view of the above, we find that there is no infirmity in the order of the Ld. Commissioner and the same is upheld. 16. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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