TMI Blog2020 (10) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... T:- The adjudicating authority while confirming the demand of Anti Dumping duty directed confiscation of the goods observing that the goods are liable to anti dumping duty and there has been mis-declaration/non-declaration of goods in the respective Bills of Entry. The confiscation of the goods was directed under Section 111(d) and 111(o) of the Customs Act, 1962 and allowed redemption of the same on payment of fine of ₹ 4.00 lakhs. There is merit in the contention of the learned AR for the Revenue inasmuch as when the goods were imported, the appellant did not appropriately declare the width of the stainless steel CR coils in the Bills of Entry only in respect of 54.294MTs when the width of other coils having width more than 1280mm declared, resulting into nonpayment of Anti Dumping duty. After initiation of investigation, the Anti Dumping duty of ₹ 49,14,756/- has been deposited by them. Subsequently, the goods were provisionally released on execution bond and cash security. On their application, the Commissioner of Customs allowed re-export of the goods in May, 2014 and the goods were subsequently re-exported in September, 2014. Penalty on Shri Ketan R Jain - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the M P wing of the customs department on21.02.2014 and later released provisionally on execution of Bond for full value and cash security of ₹ 6,92,450/- being 20% of the value. Further, the appellant have paid the entire amount of duty of ₹ 49,14,756/- on 24.02.2014. On completion of investigation a show-cause notice was issued to them for recovery/ appropriation of the said duty, proposed for confiscation of the goods and penalty on the Appellant company and on Shri Ketan R Jain Director. On adjudication, the demand was confirmed and duty paid was appropriated, goods released provisionally was directed to be confiscated under Sec.111(d) and 111(o) of CA,1962 with an option to redeem the same on payment of fine of ₹ 4.00 lakhs, penalty of ₹ 5.00 lakhs imposed on the Appellant company under Sec.112(a) (b) of CA,1962; penalty of ₹ 5.00 lakhs and ₹ 1.00 lakh imposed on the director Shri Ketan Jain under 112(a) (b) and Section 114AA of CA,1962 respectively. Aggrieved by the said order, they filed an appeal before the learned Commissioner (Appeals), who in turn, partly allowed their Appeal by reducing the redemption fine to ₹ 3.00 lakhs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teel CR Coils having width more than 1250mm. It is observed by the Tribunal that demand of anti-dumping duty on import of stainless steel cold rolled coils having width 1256 MM to 1259 MM being beyond tolerance limit prescribed under the said notification, is not sustainable. In the case of Mascot International, the width was 1251 to 1300 MM. Thus, in view of the above judgement, the antidumping duty where width was not declared in the bill of entry, the width was ranging from 1273 to 1278 MM and therefore antidumping duty was not leviable. Hence, there was no malafide intention on the part of the appellant not to declare the width in the bill of entry when the same has been mentioned in the packing list and purchase invoices filed along with the bill of entry. He has further submitted that in the case of Arti C Bhutia Vs CC(Export), Nhava Sheva - 2014 (299) ELT 113 (Tri-Mum), the allegation of the revenue that there was mis-declaration as the goods were declared as trim edge, whereas on inspection it was found to be mill edge. But, the H Tribunal held that when the demand of anti-dumping duty is set aside the question of confiscation and penalty does not arise. Even though on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962 on the ground that it was relating to Anti Dumping duty paid at the insistence of the department and since the goods were re-exported without clearance for home consumption, they are eligible to refund of the duty paid. The learned Assistant Commissioner rejected the claim holding that refund of anti dumping duty paid is covered under Section 26A and not under Section 27 of CA,1962 since offence case show-cause notice issued on the ground of mis-declaration of the goods at the time of its import and the same as on the date of claim of refund was pending adjudication. It is the contention of the appellant is that in the impugned order, the learned Commissioner (Appeals) though observed that the provisions of Section 26A cannot be made applicable to the present refund claim but Section 27 of the Customs Act, 1962 would apply, however erroneously held that the appellant are required to file a fresh refund claim. He submits that even though they were not required to file fresh refund claim since it was already filed on 31.10.2014, but a fresh application was filed on 26.11.2018. The said refund claim has been processed by the adjudicating authority and refund of ₹ 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct provision while upholding confiscation and penalty in the notice or in the adjudication Order cannot be fatal to the case as the facts leading to violation committed by the appellant has been narrated in the notice and the same has been repeated in the impugned order while confirming the confiscation and penalty. In support, she has referred to the judgment of the Tribunal in the case of AVI Steel Traders Vs. Commissioner of Central Excise 2010 (260) ELT 43 (Del) and Commissioner of Customs, Amritsar Vs. APM International 2008 (222) ELT 194 (P H). 6. Heard both sides and perused the records. 7. The issues in Appeal No.89652/2018 for determination are: (i) applicability of Anti Dumping duty on the imported stainless steel CR Coils having width less than 1280 mm; (ii) confiscability of the goods seized and imposition of penalty, (iii) imposition of penalty on Shri Ketan R Jain, Director of the Appellant. 8. As far as the leviability of Anti Dumping duty on the imported Stainless Steel CR Coils having width less than 1280 mm is concerned, I find that the issue is no more res integra and settled by the judgment of Hon'ble Supreme Court in favor of Revenue in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation of the goods was directed under Section 111(d) and 111(o) of the Customs Act, 1962 and allowed redemption of the same on payment of fine of ₹ 4.00 lakhs. The relevant provisions read as follows: CONFISCATION OF GOODS AND CONVEYANCES AND IMPOSITION OF PENALTIES SECTION 111 . Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation : - (a) . (b) (c) . (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) .. (f) . (g) (h) . (i) .. (j) .. (k) (l) (m) [any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 [in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 111(d) and 111(o) of the Customs Act, 1962. However, on Appeal by the Appellant before The learned Commissioner (Appeals), though he has observed that Section 111(d) cannot be made applicable and directed confiscation under Sections 111(m) and 111(o) of the Customs Act, 1962. It is the contention of the Appellant that the learned Commissioner (Appeals) has travelled beyond the scope of the adjudication order and hence his order directing confiscation cannot be sustained. Replying the said argument, the learned AR for the Revenue cited various judgments in support of their argument that mere non-mentioning of the correct rule in the notice cannot absolve the noticee from the liability of penalty for any acts or omission resulting to contravention or violation of the provisions of the Act or Rules made there under, when the facts revealing contravention are mentioned in the notice. 14. I do not see merit in the said argument of the Revenue as in the present case, the show-cause notice was issued proposing confiscation under Sections 111(d) and 111(o) of the Customs Act, 1962 and in adjudication the confiscation was directed under the said provisions. Aggrieved by the said O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Advocate for the appellant submits that pursuant to the direction of the learned Commissioner (Appeals), they filed a refund application on 26.11.2018. The said refund application was scrutinized by the jurisdictional Assistant Commissioner of Customs and refund was sanctioned to them on 28.02.2019. It is their grievance that the refund application filed on 31.10.2014 was a valid application and they are not required to file another application on 26.11.2018. I do not find merit in the contention of the appellant in as much as the amount of Anti Dumping duty was paid during the course of investigation in February, 2014, which later resulted into issuance of show-cause notice in August, 2014 after completion of the investigation. The said show-cause notice was adjudicated by the Assistant Commissioner in 2017 and the appeal against the said order was finally decided by the learned Commissioner (Appeals) by order dated 19.09.2018.Consequent to the said Order the refund of anti dumping paid during investigation became due to them. Consequently, on their filing of refund claim on 26.11.2018, the Assistant Commissioner after scrutinizing the refund claim from all aspects including un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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