TMI Blog2019 (12) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant admitting the differential duty liability in respect of each of 13 Bill of Entries, after making the payment, the appellants are barred from taking any stand contrary to what has admitted by them. The fact that statement has been recorded nearly two months after the act of actual deposit the statement is voluntary, in absence of any retraction of the same - there are no merits in submission made by the Appellant in respect of the differential duty confirmed along with interest. Abatement of duty - Section 28 (2) of the Customs Act, 1962 - HELD THAT:- In terms of this sub section, when the son has admitted duty liability and had paid the same along with the interest due, the proceedings should have been abated against that person. In our view it is not the case of willful misstatement, suppression or mis-declaration, but a case of bonafide error in claiming the benefit of exemption which was not due to them, we do not find any merits in the penal proceedings undertaken against them - Since appellants have clearly and correctly described the imported goods as part of water filter, the error in claiming the benefit of wrong exemption notification cannot be act of deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.1.7. I do not impose penalty under section 112 of the Customs Act, 1962 on M/s. Hitech Sweet Water Technology Pvt. Ltd. as section 114A clearly precluded imposition of penalty under both the sections 112 and 114A of the Customs Act, 1962. 5.1.8. I also order appropriation and adjustment of the amount of ₹ 83,64,390/- (Rupees eighty three lakh sixty four thousand three hundred ninety only) paid voluntarily by M/s. Hitech Sweet Water Technology Pvt. Ltd., against the differential duty, interest and/or penalty payable by them. 5.1.9. The B/E no.792603 dated 31.03.11 and 3303205 dtd. 25.04.11 having being assessed provisionally to be assessed finally denying the benefit of notification 6/2006 CE dated 01.03.2006. 2.1 On the basis of intelligence that the appellant were importing goods declared as Filmtech Membrane (water filter parts) by classifying them under CTH 84212190 and by claiming the duty exemption under Sr No 8C(ii) of notification No 6/2006-CE dated 01.03.2006 (as amended) [@ 5% CVD since 01.03.2011 and 4% CVD since 01.03.2010], investigations were initiated against the appellants. 2.2 Two live consignments imported vide B/E No 792603 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 812537 126222 757278 24.07.10 11309551 1360991 1341410 168135 802863 25.08.10 18880044 2769565 995485 111484 862263 25.09.10 10487020 1759547 746311 73916 939853 09.11.10 3333152 559248 237204 19105 604776 13.12.10 3425945 574817 243808 16231 648759 07.01.11 9533592 1599579 678460 38478 673708 21.01.11 10604394 1779242 754664 38456 689913 31.01.11 3385116 567967 240902 10890 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and114AA of the Customs Act, 1962; They had not misdeclared the goods at the time of the clearance and description given by them on the B/E was same as per the invoice and packing list. Even the issue involved is no one of misdeclaration of the goods but is of in-correct availment of benefit under exemption notification No 6/2006-CE. In view of various pronouncements as follows, it cannot be inferred that they had claimed the benefit of the wrong exemption notification with intent to evade payment of duty Mahavir Corporation [2003 (160) ELT 355 (TBom)] Northern Plastic Ltd [1998(101) ELT 549 9SC)] Surbhit Impex P Ltd [2012 (283) ELT 556 9TMum)] N D Metals Ids Ltd [2009 (236) ELT 83 (T)] Gaurav Enterprises [2006 (193) ELT 532 (T)] Padamanabh Silk Mills [2006 (193) ELT 536 (Guj)] Jaramsons Plastic Industry [1993 (63) ELT 558 (T)] Mala Bhakatani [1993 (63) ELT 563 (T)] Bajaj Health Nutrition P Ltd [2004 (166) ELT 189 (T)] Assessment is basically the job performed by the revenue as has been held in the following decisions- Hindustan Ferodo Ltd [1997 (89) ELT 16 9SC)] Garware Nylons Ltd [1996 (87) ELT 12 (SC)] HPL Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ET 577 (SC)] clearly held that the person claiming the benefit of exemption is required to satisfy himself and then claim the benefit of exemption. Entire responsibility in respect of exemption claimed thus is on the claimant. When the benefit non available exemption has been claimed extended period of limitation is applicable Hotline CPT Ltd [2016 (333) ELT 356 (T-Del)] 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The issue on merits as submitted by the learned Authorized Representative is no longer res integra and covered by the decision in case of Pure Cure Technology [2019-TIOL-38-CESTAT-Mum] wherein it has been held as follows: 7. We find that while discarding the said argument in the impugned order, the Ld. Commissioner (Appeals) recording reasons observed that membrane no doubt play a crucial role in purifying water, but the question is one whether the membrane itself straightaway purifies the water. Then referring to the definition of equipment as defined under Oxford Dictionary, the Ld. Commissioner (Appeals) concluded that the membrane cannot be construed as water purifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 237204 19105 604776 13.12.10 23.05.2011 243808 16231 648759 07.01.11 24.05.2011 678460 38478 673708 21.01.11 24.05.2011 754664 38456 689913 31.01.11 20.05.2011 240902 10890 690383 31.01.11 20.05.2011 644045 29114 692552 01.02.11 20.05.2011 242751 10874 792602 31.03.11 20.05.2011 201192 4217 792603 31.03.11 20.05.2011 566623 11876 Total 7705392 658998 4.4 In his statement recorded under Section 108 of Customs Act, 1962 on 20.07.2011, Shri Vij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the matter giving rise to that disability. Halsbury, Vol. 13, para. 448. The rule on the subject is thus laid down by Lord Denman, in Pickard v. Sears, 6 Ad. E. 469 at p. 474: But the rule is clear, that, where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act to that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. The whole doctrine of estoppel of this kind, which is fictitious statement treated as true, might have been founded in reason, but I am not sure that it was. There is another kind of estoppel - estoppel by representation- which is founded upon reason and it is founded upon decision also. Per Jessel, M.R. in General Finance Co. v. Liberator, L.R. 10 Ch.D.15(20). See also in Simon v. Anglo-American Telegraph Co., L.R. 5 Q.B.D.202 Bramwell, L.J. said An estoppel is did to exist where a person is compelled to admit that to be true which is not true and to act upon a theory which is contrary to the truth. On the whole, an estoppel seems to be when, in consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Lord Wright in Canada Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Stemships Ltd. (1946) 3 W.W.R. 759 at p. 764). The essential factors giving rise to an estoppel are, I think- (a) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation was made. (b) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation was made. (c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but, where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted. (Per Lord Tomlin, Greenwood v. Martins Bank (1933) A.C.51.) See also Thompson v. Palmer, 49 C.L.R. 547; Grundt v. Great Boulder, 59 C.I.R.675; Central Newbury Car Auctions v. Unity Finance (1957)1 Q.B.371SD.MN Estoppe,' commeth of a French word estoupe , from whence the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or defended as against the person precluded from denying it. In his illustrious book Law of Estoppel 6th Edition, Bigelow has noted as follows: Situations may arise, indeed, in which a contract should be held an estoppel, as in certain cases where only an inadequate right of action would, if the estoppel were not allowed, exist in favour of the injured party. In such a case the estoppel may sometimes be available to prevent fraud and circuity of action. In another illustrious book Estoppels and the Substantive Law by Arthur Caspersz under title 'Conduct of Indifference or Acquiescence' it has been noted as follows: 40. It is, however, with reference to the third class of cases that the greatest difficulty has arisen, especially where statements have been made, expressly or by implication, which cannot properly be characterized as representations at all. It must now be regarded as settled that an estoppel may arise as against persons who have not willfully made any misrepresentation, and whose conduct is free from fraud or negligence, but as against whom inferences may reasonably have been drawn upon which others may have been induced to act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation or conduct. Lapse of time and delay are most material when the plaintiff, by his conduct may be regarded as waiving his rights, or where his conduct, though not amounting to a waiver, has placed the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards asserted. When, however, an argument against a relief, otherwise just, is founded upon mere delay not amounting to bar by limitation, the validity of that defence must be tried by principles substantially equitable. In Snell's Principles of Equity, 27th Edition, Chapter 3, 12 Maxims of Equity have been indicated. Of these maxims principles 5, 6 and 7 are relevant for the purpose of the case in hand. They are as follows: x x x x 5. He who seeks equity must do equity. 6. He who comes into equity must come with clean hands. 7. Delay defeats equities, or, equity aids the vigilant and not the indolo Vigilantibus, non dormientibus, jura subveniunt. x x x x x The following passage from the Law relating to Estoppel by Representation by George Spencer, Second Edition as indicated in Article 3 is as follows:- It will be conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and (3) ratification i.e. agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner. But if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction, the principle of estoppel will be controlled by another rule governing the law of minors. If after attaining majority he ratifies the transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It may be that on attaining majority he has the option to disown the transaction and disgorge the benefit or to accept it and adopt it as his own. Whether after attaining majority the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case. In Provash Chandra Dalui v. Biswanath Banerjee (AIR 1989 SC 1834), it was observed as follows: 21. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s others to do that which they otherwise might have abstained from, he cannot question legality of the act he had sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. Thus in view of the statement made by the Appellant admitting the differential duty liability in respect of each of 13 Bill of Entries, after making the payment, in our view the appellants are barred from taking any stand contrary to what has admitted by them. The fact that statement has been recorded nearly two months after the act of actual deposit the statement is voluntary, in absence of any retraction of the same. Hence we do not find any merits in submission made by the Appellant in respect of the differential duty confirmed along with interest. 4.6 Section 28 (2) of the Customs Act, 1962, reads as follows: (2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (1) shall inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty or interest so paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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