TMI Blog2018 (11) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... e a show cause notice on 7th November 2008, and then it was for the department to issue the show cause notice within the prescribed period of limitation which ended after the said date. Thus even if the appellants argument that extended period of limitation cannot be invoked in the present case is admitted, even then the demand cannot be held to be time barred as the all the amounts had been paid by the appellants, prior to expiry of normal period of limitation. It was responsibility of the Appellant to ensure that he was eligible for exemption benefits claimed by him. He was thus required to make a fair declaration claiming the benefit of exemption Notification - Further it is an admitted fact by the employees of appellant who are professionally qualified metallurgical engineers that just by looking at the mill test certificate they can tell whether the consignment to which said mill test certificate pertains is of alloy steel or else. The professional experience of the said persons cannot be disregarded. If the appellants were aware that the goods imported by them were other alloy steels, definitely by declaring them an classifying them as non alloy steels to avail the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in favour of the Revenue. The assessee has paid up the amount of duty and is not seeking any relief in relation to the same. That there was a difference of opinion would denote as to how an arguable case was raised and, therefore, the extended period of limitation cannot be invoked. 7. In the impugned order, barring noting the rival contentions, the Tribunal, according to Mr. Sridharan, has passed a cryptic order without assigning any reasons and considering the materials placed on record. It is, therefore, for this limited issue that the appeal deserves to be allowed and the matter examined again by the Tribunal. Mr. Sridharan, on instructions, states that no other issue would be raised and argued, save and except the plea of time-bar. 8. Mr. Sonpal, on the other hand, would submit that the issue of limitation is a mixed question of fact and law. Whether it is willful misstatement or suppression of facts would necessitate an enquiry into factual matters and once the Tribunal has referred to the statement of officials of the assessee, then, there cannot be any reappreciation and reappraisal of the order passed by the Tribunal. It is not vitiated by any e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at we have kept all contentions open and merely because we have admitted this appeal and passed an order of remand or allowed it in the above terms, does not mean that any conclusive opinion is rendered or expressed by this Court. 2.0 Thus matter in terms of remand order needs to be heard on the limited extent in respect of invoking the extended period of limitation. The submission made by the appellant before the High Court, was effectively to the effect by referring to the order of Tribunal, learned Counsel submitted that, matter was complex one and appellant entertained genuine doubt in respect of the correct classification of goods under consideration. The fact that two members originally hearing the matter have deferred and the issue was resolved only by referring the matter to third member of tribunal, shows the complexity of issue and is enough to hold that the appellants entertained a bonafide and genuine doubt in respect of classification of goods. 3.0 Arguing on the behalf of Appellant Shri T Vishwanathan, learned Counsel, submitted that- i. They had made a genuine and correct declaration in respect of the goods imported by them. It is for the revenue authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the consignments have been verified in conjunction with the MTC s. iv There is no intention to evade payment of duty. The total duty leviable in respect of the alloy steel falling under heading 7209 and non alloy steel falling under heading 7225, has been same for all the periods except during the period 18.04.2008 till November 2008.. Irrespective of the duty structure they had always classified the CR Coil under heading 7209 as Non Alloy Steel. It is not that just to avail the benefit of exemption Notification No 21/2002-Cus (SL No 190C) they had classified the said goods under heading 7209. v. The appellants being accorded an Accredited Client Programme Status ought to have classified the goods correctly, is an alibi to allege mis-declaration. In the instant case they have filed all the declarations as mandated and no facts have been suppressed by them. The claim of the department that since they are ACP clients, the goods have not been examined is only an alibi to fasten duty demand otherwise barred by limitation. vi. Even if the declaration filed is found to be incorrect or erroneous then also the requirement for filling the declaration has been fulfilled. In sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this measure will bring about drastic reduction in the dwell time of cargo and transaction costs for such importers. i. In terms of the above circular, import consignments of ACP Status holders were allowed to clearance on the basis of self assessment. Hence when the goods are allowed clearance on the basis of self assessment, then department cannot be faulted for the assessment made by the appellant. ii. Various authorities which support the invocation of extended period of limitation in this case are as follows:- a. Pleasantime Products Vs Commissioner of Central Excise Mumbai [2009 (243) ELT 641 (SC)] b. Commissioner of Central Excise Goa Vs Pooja Ferro Alloys Ltd. [2011 (273) ELT 24 (BOM)]. iii. Further certain pleas which the appellants are now raising, were never raised before the adjudicating authority. On the contrary Appellants had at the stage of investigation itself admitted the duty liability and paid the same. It is settled law that such pleas which require further verification cannot be raised at the appellate stage. He relied upon following authorities in his favour- a. Autolec Industries vs Collector of Customs [1991 (56) ELT 211 (T)] b. Anna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of Deposit Amount Deposited in Rupees 7 th November 2008 1,00,00,000 12 th November 2008 1,00,00,000 17 th November 2008 80,00,000 25 th November 2008 18,00,000 24 th December 2008 3,83,689 Total 3,01,83,689 vii In respect of eleven live Bill of Entries, appellant deposited the differential duty of ₹ 80,32,473/- viii. Goods totally valued at ₹ 13,10,71,798/- (rupees Thirteen Crores ten Lakhs Seventy One Thousand Seven Hundred Ninety Eight Only) imported under all the Bills of Entry were seized under a Panchnama dated 19/11/2008, under the provisions of Section 110, under reasonable belief that same had been imported and attempted to be cleared in contravention of various provisions of the Custom Act, 1962, and were liable for confiscation under Section 111 (o) and (d) of the said Act. Appellant made a request for the provisional release of the seized goods and deposited differential duty of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of refund; (d) in any other case, the date of payment of duty or interest. 8.0 Appellants have vide letter of their counsel dated 5.01.2017, submitted a detailed chart of Bill of Entries in respect of which the demands have been made. From the said chart in respect of which the appellants have claimed the demand to be barred by limitation, following details are worth noting- Table 2: Bill of Entries for which demand claimed to be time barred S No Bill Of Entry No. Bill of Entry date Date of examination Differential Duty in Rs 1 837376 30.04.2008 12.05.2008 4,24,637 2 840908 20.05.2008 28.05.2008 28,51,030 3 840918 20.05.2008 28.05.2008 5,54,987 4 840920 20.05.2008 28.05.2008 2,92,710 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus in terms of Section 28, the period of limitation which has to be within six months from the date on which the proper officer makes the order for clearance of goods would be some date after 12.05.2008. Since examination precedes the order for clearance of goods. In respect of these Bill of Entries, Appellant have themselves admitted the error and have proceeded to pay the duty as detailed in table 1. Since the duty has been paid in respect of these clearances on 7th November 2008, 12th November 2008, 17th November 2008, 25th November 2008 and 24th December 2008 by the appellants the demand was not time barred on the date of payment. Thus the proceedings initiated by the Show Cause Notice dated 01.01.2009, cannot be said to be proceedings for fresh demand of duty but are only in nature of proceedings to confirm the amount paid and appropriate the said payment against the confirmed duty liability. Para f of the Show Cause Notice makes this aspect very clear when it states that Duty deposit of ₹ 3,01,83,689/- (rupees Three Crore One Lakh Eighty Three Thousand Six Hundred Eighty Nine only) deposited with Customs for CR Coils earlier cleared as per Annexure B to the Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: 52. To sum up, we answer the reference holding as under (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export Case (supra) stands overruled. 10.3 In terms of the above referred decision of the Constitutional Bench of Apex Court, it was responsibility of the Appellant to ensure that he was eligible for exemption benefits claimed by him. He was thus required to make a fair declaration claiming the benefit of exemption Notification. 10.4 The issue as projected by the appellants to be a complex one is not as complex and reliance placed by the Appellant, on the difference of opinion between the two Members of CESTAT while deciding their appeal is tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 1.65% then also it will not qualify as other alloy steel. Therefore, the expression or more is relevant to define other alloy steel otherwise the expression or more shall become meaningless and redundant. 7 .In the case in hand before us as recorded in para 3 of the impugned order the percentage of manganese is more than 1.65% and titanium is more than 0.05% thus the imported coil qualifies the definition of other alloy steel as per Chapter Note 1(f) of Chapter 72. Therefore, the ld. Member (Technical) has rightly held that the impugned goods are other alloy steels and not eligible for the benefit of the Notification. .. 10.5 From the above referred differing view, it is quite evident that both the Members had concluded that goods imported are other alloy steels and not eligible for benefit of exemption. The order of differing member dispel any further doubt that might be there in mind of any person and he has concluded on the facts that even if the argument of the appellant is accepted then on facts these goods still are other alloy steels only and shall not be eligible for benefit under the notification. 10.6 Further it is an admitted fact by the employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly non alloys steel is eligible for the benefit of exemption of basic custom duty. This proves that the importer knowingly claimed the said benefit against the alloy steel coil also. Further, there is no scope of any ambiguity/ confusion as it is very clearly defined what is alloy steel and what is non alloy steel. Thus the importer s act of claiming the steel as non alloy steel under Sr No 190C amounts to suppression of facts for evading duty applicable on alloy steel. The case laws cited by the importer about claiming a particular classification or exemption under a particular notification not amounting to misdeclaration would have been applicable, had he provided full and correct description of goods. 10.10 Further issue has been raised in respect of the Appellant being an ACP status holder. It has been pointed out by the AR, relying on the circular of CBEC, that assessment and clearance of the goods by such status holder is facilitated by the departments automated risk management system. The imported goods are assessed by the system on the basis of the declaration made on the bill of entry and allowed clearance without or minimal human intervention. In such cases only a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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