9911796707
TMI Blog2023 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing exemption under Customs Notification Nos. 021/2012 Sl.No. 473 and 021/2012 Sl.No. 95. Import data pertaining to import of Radiotherapy Equipment for past years was retrieved and the importers were identified. One of such importers was the assessee herein. It was observed that the assessee had imported and cleared goods for home consumption vide three Bills of Entry as per the details as under: S. No. B.E No. & Date Description Duty Exemption CTH Claimed 1 4814028/ 06.04.2016 Partial Shipment of Linear Accelerator- Base Installation, Pre-Installation Kit. C.N 12/12 Sl.No. 473 & SAD Notification No. 21/2012 Sl.No. 95 90229030 2 5499796/ 03.06.2016 High Energy Linear Accelerator True Beam STX Including Accessories ---DO-- 90229030 3 5507937/ 04.06.2016 True Beam Couch ---DO-- 90229030 4 5507937/ 04.06.2016 MV Imager ---NA-- 90221490 5 5507937/ 04.06.2016 Aria Oncology Information System ---DO-- 90229030 6 5507937/ 04.06.2016 Eclipse Treatment Planning System ---NA-- 90221490 7 5507937/ 04.06.2016 KV Imager ---NA-- 90221490 2.2 It appeared that as per the declaration made in the corresponding invoices, the goods were supplied in Partial S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipment as well as other equipments, the assessee had obtained authorisation under Export Promotion Capital Goods (EPCG) Scheme. The duty limit of the EPCG License was fixed after computing BCD at 7.5% + CVD at 6% + Education Cess at 3% + SAD at 4%. The following EPCG authorisation was issued to the assessee. S. No. Authorization No. Authorization Date Average EO to be maintained Duty Saved (INR) Specific EO 1 0430015780 19.05.2016 44,08,65,328/- 9,24,52,523/- 55,47,15,138/- 4. It was submitted that identical goods were imported by M/s. Nagarjuna Hospital Limited vide Bill of Entry No. dated 18.03.2016 and the goods were examined on first check basis by Customs House, Chennai. After detailed examination, classification of these goods was settled by the Department under Tariff Item 90229030. The assessee followed the same as both these consignments were cleared by the same CHA. There was no intention or deliberate action on the part of the assessee to evade payment of duty. 5.1 On merits, the assessee submitted that even if the imported goods are classifiable under CTH 90221490 as alleged, no differential duty would be payable in cash as the goods were imported und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight Hundred and Sixty Two only) (in respect of Bills of Entry Nos. 5499796 dated 03.06.2016 and 5507937 dated 04.06.2016) to be debited in the EPCG authorization 0430015780 dated 19.05.2016 and the balance differential duty of Rs.99,779/-(Rupees Ninety Nine Thousand Seven Hundred and Seventy Nine) (in respect of Bill of Entry No. 4814028 dated 06.04.2016) to be collected along with applicable interest under Section 28AA of the Customs Act, 1962. D. I hold that no interest is demandable in respect of Bills of Entry Nos. 5499796 dated 03.06.2016 and 5507937 dated 04.06.2016. E. I hold goods namely "One set of High Speed Linear Accelerator - True Beam STX with HD 120 millenium system with accessories, Base Frame Universal, Pre-installation and Main circuit Breaker, MV and KV Imager, ARIA Oncology Information System and Eclipse TPS" covered under Bills of Entry Nos. 4814028 dated 06.04.2016. 5499796 dated 03.06.2016 and 5507937 dated 04.06.2016, totally valued at Rs.28,62,62,235/- (Rupees Twenty Eight Crore Sixty Two Lakh Sixty Two Thousand Two Hundred and Thirty Five only) liable for confiscation under Section 111(m) of customs Act, 1962. I impose Redemption fine of Rs.10,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Bill of Entry dated 06.04.2016, the original authority held that the differential duty of Rs.99,779/- is payable with interest as the SFIS scrip details available with the office on ICES module brings out that there is no adequate balance. 7.2 The Ld. counsel submitted that the assessee accepts the order passed by original authority in allowing debit of the differential duty in the EPCG authorization dated 19.05.2016. The appeal is against the order of confiscation, imposition of redemption fine and penalties. In paragraph 26 of the impugned order, it is seen that the original authority has held that the goods are liable for confiscation only because of the wrong classification adopted by the assessee. The assessee was under bona fide belief that the goods are classifiable under CTH 90229030. Moreover, identical goods imported by M/s. Nagarjuna Hospitals Limited from the same suppliers under Bill of Entry dated 18.03.2016 was classified under the same heading and cleared through Custom House, Chennai. It is argued by the Ld. counsel that classification is an interpretational issue and no mens rea can be attributed upon the assessee especially when assessee has adopted correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Haryana High Court in the case of Commissioner of Customs Vs. Raja Impex (P) Ltd. [2008 (229) ELT 185 (P&H)], to hold that when the goods are not available, the order of confiscation is not proper. 8. The Ld. counsel prayed that the order of confiscation and imposition of redemption fine and penalties may be set aside. 9. It is also submitted by the Ld. counsel that the Show Cause Notice in the present case is issued by DRI. Though the issue as to whether the Show Cause Notice issued by DRI is proper and valid is pending consideration before the Hon'ble Supreme Court, the assessee does not intend to raise the said plea in regard to this appeal before this forum or any other forum. The assessee has filed an affidavit to this effect. 10. The Ld. Authorised Representative Shri R. Rajaraman appeared and argued for the Revenue. It is submitted that the original authority has erroneously waived the demand of interest in regard to Bills of Entry dated 03.06.2016 and 04.06.2016. The wrong classification of the goods would not have come to light but, for the investigation done by the DRI. Therefore, the confiscation of the goods and the redemption fine and penalties imposed are legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas, the Show Cause Notice was issued in this case vide F.No. DRI/MZU/B/Int-54/2018/4170 dated 28.05.2018 by the ADG, DRI, Mumbai that is within two years under Section 28 (1) of the Customs Act, 1962. 16.1 The lower adjudicating authority held the goods liable for confiscation under Section 111(m) of the Customs Act, 1962 which reads as given below:- "111. Confiscation of improperly imported goods, etc.-The following goods brought from a place outside India shall be liable to confiscation:- . . (m) 1[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 2[in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54];" 16.2 This provision enables confiscation of improperly imported goods where there is mis-declaration as to any particulars as to their value, Classification, etc., as mentioned in the Bill of Entry filed. In this case, the assessee has provided all the details relating to the imported equipment / apparatus and revising th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee was that the redemption fine is not imposable when the goods are not available for confiscation under Section 111 (m) of the Customs Act relying on the decision rendered by the Hon'ble Supreme Court in the case of Weston Components Ltd. Vs. Commissioner of Customs [2000 (115) ELT 278 (SC)] wherein it was held that in the absence of goods, redemption fine can be imposed only if the goods were released on bond. 17 . Considering the above judicial decisions, we hold that there is no contravention of provisions of Section 111 (m) of the Customs Act, 1962 as the assessee has declared all the details and the value of the imported goods in the Bill of Entry filed. As such, we have to hold that confiscation of the imported goods is not justified, and so, set aside. Consequently, the fine imposed is also ordered to be set aside. 18.1 Regarding Department's appeal for not confirming the demand of interest under Section 47 (2) of the Customs Act, 1962, the lower adjudicating authority has not given any reasons for such waiver. The only reason that can be inferred is that the imports of the goods were cleared under Zero Duty EPCG Scheme. The assessee has also referred to the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on it. This is a basic principle based on common sense and also flowing from the language of Section 61(1)(2) of the Act. The principal amount herein is the amount of duty payable on clearance of goods. When such principal amount is nil because of the exemption, a fortiori, interest payable is also nil. In other words, we are clear in our mind that the interest is necessarily linked to the duty payable. The interest provided under Section 61(2) has no independent or separate existence. When the goods are wholly exempted from the payment of duty on removal from the warehouse, one cannot be saddled with the liability to pay interest on a non-existing duty. Payment of interest under Section 61(2) is solely dependent upon the exigibility or factual liability to pay the principal amount, that is, the duty on the warehoused goods at the time of delivery. At that time, the principal amount (duty) is not payable due to exemption. So, there is no occasion or basis to levy any interest, either. We hold accordingly." 19. Though the above decision was rendered on the issue of demand of interest in respect of warehouse goods, same analogy can be drawn to resolve the issue in the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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