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2019 (10) TMI 379

..... me limitation - HELD THAT:- Section 28 of the Customs Act, 1962 was amended by the Finance Act, 2011 to prescribe normal period of limitation as one year from the relevant date - SCN issued within one year from the date of filing of Bill of Entry, is definitely within the normal period of limitation and demand made therein cannot be held to be hit by limitation under Section 28 of the Customs Act, 1962. It is a fact that the goods imported are nothing but Molybdenum Concentrate and appellants have declare the same as Molybdenum Ore on the Bill of Entries and the documents relating to import clearance. In view of the mis-declaration made the goods have been held liable for confiscation under Section 111(m) of the Customs Act, 1962, but not confiscated as they were not available for confiscation. Commissioner has also not imposed any redemption fine on the appellant hence we do not discuss this aspect any further as this issue of confiscation has become irrelevant. Penalties - HELD THAT:- However for the acts of omission and commission leading to misdeclaration of the goods for which they had become liable for confiscation under Section 111, Commissioner has imposed penalty under Sec .....

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..... mption from Countervailing Duty (CVD) as per notification No 04/2006-CE dated 01.03.2006 on seven Bill of Entries as detailed in table below: Bill of Entry Description Assessable Value Rs Duty Paid Rs Assessment Number Date 778026 22.03.11 Roasted Molybdenum Ore 62.9% 4,37,66,536 11,26,988 Provisional 316405 07.04.11 Roasted Molybdenum Ore 60.58% 2,16,42,241 5,57,288 4432424 23.08.11 Roasted Molybdenum Ore 59.46% 1,75,94,626 4,53,062 3145027 07.04.11 Roasted Molybdenum Ore 62.43% 2,13,40,834 5,49,527 Final (RMS) 3156426 08.04.11 Roasted Molybdenum Ore 59.32% 2,23,05,668 5,74,371 4674399 18.09.11 Roasted Molybdenum Ore 59.65% 1,85,48,402 4,77,621 780187 24.03.11 Roasted Molybdenum Ore 59.65% 2,19,49,910 5,65,210 Total 16,71,48,217 43,04,067 2.2 In view of the investigations undertaken by the Director General Revenue Intelligence, it was found that item imported was not Molybdenum Ore but was Molybdenum Ore Concentrate, and hence the exemption from CVD claimed by the Appellants was not admissible to them. 2.3 A Show cause notice dated 12.03.2012 was issued to them asking them to show cause as to why- Goods imported vide the seven Bill of Entries be not confiscated under Section 111(d .....

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..... ogies [2005 (189) ELT 121 T-Mum)] Northern Plastics [1998 (101) ELT 549 (SC)] No interest can be demanded when demand itself is not payable Pratibha Processors [1996 (88) ELT 12 (SC)] Jayathi Krishna & Co [2000 (119) ELT 4 (SC)] No penalty should have been imposed as has been held in the following cases. Kuresh Laila [2005 (189) ELT 45 (T-Chennai)] Polynova Chemical Industries [2005 (179) ELT 173 (T-Mum)] Jupiter Exports [2002 (145) ELT 608 (TChennai)] Pawan Goel [2001 (135) ELT 1425 (T-Del)] 3.3 Arguing for the revenue learned Authorized Representative while reiterating the findings in the impugned order submitted that- Issue involved in present case is squarely covered by the decision of the Apex Court in case of Star Industries [2015 (324) ELT 656 (SC)]; The issue raised by the Appellant in respect of the applicability of the amendments made by Finance Act, 2011 to the imports made prior to the Presidential Assent to the Act, and it publication are irrelevant in view of the Specific declaration made in terms of Provisional Collection of Tax Act, 1931 in Finance Bill, 2011 making these amendments applicable from the date of introduction of the Bill. As per the amended Section .....

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..... mined. They had admittedly undergone the process of roasting and after the roasting, they are known as concentrates . Even the assessee has described these goods as Roasted Molybdenum Ore Concentrate. (d) Chapter Note 4 treats the aforesaid process of roasting Ores into Concentrate as manufacture . 27. On the aforesaid facts, case of the assessee was that since ores include concentrates, assessee had claimed exemption from payment of CVD under Notification No. 4/2006-C.E. In support of this claim that even after roasting, concentrates remain ores only on the plea that ores is genus and concentrates is specie thereof, the assessee refer to literature on chemical technology and also its earlier judgment in M/s. Hindustan Gas and Industries Ltd. case which, in turn, relied upon the judgment of this Court in MMTC case. We have already analysed the decision in M/s. Hindustan Gas and Industries Ltd. case. The entire decision proceeds on the basis that roasting of an ore to obtain concentrate does not amount to manufacture specially when roasting is a process by which impurities in the ore are removed and the recoverable content of metal oxide is enhanced. In support, reference was made .....

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..... g the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer. (b) The purpose of treating concentrate as manufactured product out of ores is to make concentrates as liable for excise duty. Otherwise, there was no reason to deem the process of converting ores into concentrates as manufacture. 29. Once the aforesaid legal repercussions are taken note of, as a fortiori, it becomes obvious that Notification No. 4/2006-C.E. which exempts only ores would not include within itself concentrates also because of the reason that after the insertion of Note 4, concentrate is to be treated as a different product than ores, in law for the purposes of products of Chapter 26. 30. This brings us to the effect of Chapter Note 2 which is retained even after insertion of Chapter Note 4. No doubt, as per Chapter Note 2, ores means minerals of mineralogical species actually used in the metallurgical industry for the extraction of mercury, of the metals of Heading 2844 or of the metals of Section XIV or XV, even if they are intended for non-metallurgical purposes. As per this note, metals of Section XV would be .....

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..... Housing Development Limited {2017 (6) GSTL 356 (SC)] 20. In Chhotabhai Jethabhai Patel and Co. v. The Union of India and Anr., 1962 Supp. (2) SCR 1 at 20-21 = 1999 (110) E.L.T. 118 (S.C.), this Court was faced with the challenge of the levy of a retrospective excise duty. One of the arguments made against the levy of such duty is that excise duty being indirect, which is that it is ultimately to be passed on to the consumer, a retrospective levy would be ultra vires the legislative competence of Parliament as it could not possibly be passed on. This argument was repelled in the following terms : There is no doubt that excise duties have been referred to by the economists and in the judgments of the Privy Council as well as in the Australian decisions as an instance of an indirect tax , but in construing the expression duty of Excise as it occurs in Entry 84 we are not concerned so much with whether the tax is direct or indirect as upon the transaction or activity on which it is imposed. In this context one has to bear in mind the fact that the challenge to the legislative competence of the tax - levy is not directed to the imposition as a whole but to a very limited and restricted .....

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..... ecause by reason of the operation of other laws the taxpayer was not permitted to pass on the tax-levy. The retrospective levy of a tax would be one further instance of such inability to pass on, which does not alter the real nature or true character of the duty. 4.4 Section 28 of the Customs Act, 1962 was amended by the Finance Act, 2011 to prescribe normal period of limitation as one year from the relevant date. The relevant provisions of amended section are reproduced below: SECTION 28. Recovery of duties not levied or not paid or short-levied or short- paid or erroneously refunded. - (1) Where any duty has not been levied or has been short-levied or short-paid or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the .....

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..... any redemption fine on the appellant hence we do not discuss this aspect any further as this issue of confiscation has become irrelevant. However for the acts of omission and commission leading to misdeclaration of the goods for which they had become liable for confiscation under Section 111, Commissioner has imposed penalty under Section 112(a) and we uphold the same. 4.6 The reliance placed by the Appellants on the Hon ble Apex Court in case of Pratibha Processors and Jayathi Krishna & Co is not of any significance as we are upholding the demand of duty hence demand for interest will be sustained. For upholding the demand of interest we rely upon the following decisions. i. P V Vikhe Patil SSK [2007 (215) ELT 23 (Bom)] ii. Kanhai Ram Thakedar [2005 (185) ELT 3 (SC)] iii. TCP Limited [2006 (1) STR 134 (T-Ahd)] iv. Pepsi Cola Marketing Co [2007 (8) STR 246 (T-Ahd)] v. Ballarpur Industries Limited [2007 (5) STR 197 (T-Mum)] 4.7 Since cross objections are only in support of the impugned order, they are not being considered further. 5.1 In view of discussions as above, appeal is dismissed and cross objections disposed off accordingly. (Order pronounced in the open court on 10.10.2 .....

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