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TMI Blog2019 (2) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.03.2006 as amended, claiming one of the concessional rates provided in the following Clauses of the Notification : * 1A(i) : cement whose retail price does not exceed Rs. 190 per 50 kg bag; * 1A(ii) : cement whose retail price exceeds Rs. 190 per 50 kg bag; * 1C : cement whether or not manufactured in a mini-cement plant not covered in Sl. No. 1B, other than those cleared in packaged form. The concerned Bills-of-Entry were assessed and the goods cleared by extending the concessional rates of duty for CVD as claimed. All these imports took place during the period from 01/2009 to 12/2011. 2.2 From investigations carried out subsequently, it appeared to the Department that cement imported were in 50 kg bags. They were capable of being sold to other buyers also in the retail market. Hence, importers cannot claim any concession under Clause 1C of the said Notification in as much as they were neither industrial nor institutional consumers. Further, imported cement has not been sold to institutional or industrial consumers directly in bulk packings without MRP being marked on them, but in retail market to various other buyers at different MRPs which are more than Rs. 190 per 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) 1C 8. M/s. PRP Export Manufacturer C/40716/2016 01/2009 to 12/2011 05.02.2014 29,63,881/- 29,63,881/- No RF imposed as goods not available for confiscation 1A(i) 1A(ii) 1C TR 9. M/s. Al Kabir Impex Services, CHA C/4172/2016 01/2009 to 12/2011 27.02.2014 - 10,000/- No RF imposed as goods not available for confiscation 1A(i) 1A(ii) 1C 10. M/s. Madhucon Projects Ltd., Trader C/40684/2015 01/2009 to 12/2011 25.09.2013 42,12,818/- 42,12,818/- 67,00,000/- 1A(i) 1A(ii) 1C 3.1 When the matter came up for hearing, Ld. Advocates/Counsel, namely, Shri. N. Viswanathan, Shri. R. Muraleedharan, Shri. G. Derrick Sam and Shri. A.K. Jayaraj, represented the appellants and contentions put forward by them can be broadly summarized as under : (i) The duty being levied is the CVD equivalent of the duty leviable on like goods manufactured in India by application of the rate of duty prescribed under the Excise law. It is but necessary to equate them on par with a manufacturer as otherwise it will result in total anomaly and discrimination; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers involved have admittedly not sold the goods in the retail market and have either used the cement by themselves (four of the appellants) or sold only to institutional and industrial consumers rendering the very investigation and issue of the notice to them faulty; (x) The adjudicating authority though relied upon the provisions contained in the Central Excise (Determination of the Retail Sale Price of Excisable Goods) Rules, 2008 strictly do not apply to these cases since the Portland Cement is not an item notified under Section 4A of the Act; the authorities have not complied with the requirement of the rules framed therein by either undertaking the market enquiry to ascertain the retail price of the goods sold by each of the importers or determine the retail price of such goods if in case the MRP is said to be obliterated prior to one month of such sale. The absence of such exercise only shows that the officers have conceded that there has been no retail sales of the goods and therefore, all the assessments ought to have been done only under Clause 1C of the impugned Notification; (xi) The fact that the price determination pertains to the retail sale price of the goods, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for assessment. The Assessing Officer has gone through and accepted the declaration and documents and have allowed the import of the cement on payment of duty at the rate mentioned in Clause 1A(i), 1A(ii) or 1C as per his discretion and powers, and assessed the bills after going through the relevant documents filed. The impugned Order cannot be said to be nullified for resorting the review mechanism, since the goods are assessed by the Officer and not self-assessed by the importer. Judgement of the Hon'ble Supreme Court in the case of Collector Vs. M/s. Décor Industries Reported in 1997 (94) E.L.T. A51 (S.C.) supports the above contention. Moreover, when the impugned Order recorded that the import of cement was RSP based, it is the incumbent duty of the Assessing Officer to make enquiry and to make the assessment based on the documents submitted before him and the Department cannot be permitted to carry out any subsequent exercise to trace the goods imported till they are sold. In other words, the officers should have determined the RSP of the cement at the time of import and not subsequent to the clearance of the goods, unreasonably alleging that they had misdeclared or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 Goods used for construction of Government contract. Demand made based on sale price of M/s. Antony Metals - cement consumed for construction of their own factory and not sold in retail. Benefit denied since importer is not an industrial consumer. RSP of cement imported is less than the cost of import, both by original authority and adjudicating authority. 3.3 In respect of Appeal No. C/40684/2015-DB, the following additional submissions pertaining to that case were made by Ld. Counsel Shri. A.K. Jayaraj : a) The imports were made from actual manufacturer in Pakistan. The transaction is through High Sea Sales. The Bill of Lading, manufacturer invoices and High Sea Seller invoices all can be tallied to establish the fact that the same were imported from the manufacturer; b) The cement imported was used for construction, civil activities for own consumption by the appellant-importers. It is the appellants who declared this fact repeatedly starting from the date of import; c) The assessments were finalized after due verification and no questions were raised regarding concession claimed by the appellant/importer and the same was allowed. Without any additional evidence contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Notification No. 04/2006-CE for concessional rate of CVD, were assessed and allowed clearance for home consumption. At this stage, we find merit in one of the contentions of the Ld. Counsel that the concept of self-assessment of Customs Duty inter alia in respect of imported goods by the importer came into effect only by the Finance Act, 2011 with effect from 08.04.2011. The new Section 17 of the Customs Act, 1962 which came to be introduced with effect from 08.04.2011 provided for self-assessment of duty on imported goods by the importer himself. As per the clarifications given in Board Circular No. 17/2011-Cus. dated 08.04.2011, the importer, at the time of self-assessment, will ensure that he declares the correct classification, applicable rate of duty, value of benefit of exemption Notification claimed, if any, in respect of the imported goods while presenting Bill of Entry. In this regard, we also find that a large number of the quantum of the imports in all these cases had been effected before 08.04.2011. 8.1 We first intend to take up the plea of limitation made by the appellants herein. In cases, we find that the Show Cause Notices have been issued at least more than on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have heard Ms. Pinky Arora, learned counsel for the assessee-appellants and Shri Yogesh Agarwal, learned DR for the Department. 5. After hearing both sides and on perusal of the record, it appears that the assessee-appellants have sold the goods directly to the consumer which includes the Government agencies, builders, institutions and individuals without involving a retail sale agency or other institutions, and has, therefore, not fulfilled the criteria of "retail sale". Hence, the definition of "Retail Sale" as per Rule 2(q) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 will not apply. This ratio was laid down by this Tribunal in a number of cases which includes Prism Cement Ltd. v. CCE, Bhopal, Final Order Nos. 53855-53856/2016, dated 28-9-2016, wherein it was observed that when the sales are direct without any intermediary person and it was not meant for resale, then the concessional rate of duty can be availed by the assessee-appellants, especially when the cement packages were cleared without marketing of RSP and with an endorsement of "not for resale". 6. Thus, in view of the above, the sale to the individual without any intermediary person is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been brought before us. The impugned orders observe that the appellants failed to establish actual user. No such condition regarding manner establishing such fact was put at the time of assessment and clearances. The claim in the Bills of Entry at the time of import as well as in the written submissions made before the lower authorities by the appellant-importer categorically states about not selling the imported product to any other person. No evidence to that effect has also been brought by the Revenue. In such situation, the eligibility to the CV duty concession as claimed by the appellant during the material time cannot be questioned much later without any evidence. 8. In view of above discussion and analysis, we find that there is no merit in the impugned orders denying CV duty concession wherever available to the importer-appellants of such conditions. Accordingly, the impugned orders are set aside and all the appeals are allowed with consequential reliefs, if any, as per law." 11. From the discussions, findings and conclusions hereinabove and also following the ratio of the decisions of the Tribunal cited supra, we are of the considered opinion that the demands will not su ..... 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