9911796707
TMI Blog2024 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, for having imported coffee beans from Uganda and Vietnam. The first consignment indicated the total quantity of coffee beans at 1,79,500 kgs., even as per the bill-of-lading and the second consignment weighed 74,100 kgs. as per the bill of lading. The said imports were made under Procurement Certificate issued by the Superintendent of Central Excise, Theni Range. The importer had claimed the benefit of Customs Notification No. 52/2003-Cus. dated 31.03.2003 and the requirement of the above notification was that the coffee beans so imported have to be used in the manufacture of export product. 2. There is no dispute that the first consignment had 10 containers, with 300 bags of coffee beans in each container. When the goods arrived at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in the short quantity of about 8985 kgs. of coffee beans, but however, they received a Show Cause Notice dated 16.08.2010 from the Revenue proposing rejection of their claim for remission of duty. 4.2 During the course of adjudication, the importer participated in response to the personal hearing granted by the adjudicating authority. It also appears that the importer filed written submission wherein they appear to have indicated that the shortage could have occurred during voyage of the ship, but however, the insurance company had settled their claim towards the cost of the coffee beans not available on arrival, and since there was no insurance cover for the customs duty, the same was not reimbursed by the insurance company thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. 6. In reply, per letters dated 26.03.2012 and 28.03.2012, it appears that the importer indicated that the matter was already adjudicated upon vide Order-in-Original No. MAD-CUS-000-ASC-01-11 dated 13.12.2011, against which the importer had already filed appeal/s; the very subject matter of shortage was pending before an appellate forum and hence, in order to avoid multiplicity of proceedings in respect of the very same issue, the proposed actions for Show Cause Notice may be kept in abeyance until the disposal of the appeal/s which is/are pending. 7.1 The adjudicating authority having issued the Show Cause Notices even before the completion of appellate proceedings, however, apparently did not conduct any investigation as directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised surveyor, who reported that seals of all the containers were intact. (ii) The surveyor, being a third-party, the above observation is of utmost relevance since the shortage could be on account of short shipment. Even the Customs House Agent (CHA) has confirmed that the seals were intact. (iii) The observations of the insurance surveyor, who merely mentioned that the shortage could have occurred in transit, would only indicate that the surveyor's report is indecisive. (iv) The Show Cause Notices have accepted the above indecisive report of the surveyor alleging that the loss could be during transit, but however, no supporting evidence is relied upon. (v) The Show Cause Notices do not dispute as regards the seals on the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs that any imported goods have been lost (otherwise than as a result of pilferage) or destroyed, at any time before clearance for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall remit the duty on such goods. ...." 13.2 When we apply the above provision to the case on hand, it is clear that the goods undelivered, were not on account of pilferage, or destroyed, and hence, they assume the characteristic of 'lost', as appearing in Section 23 ibid. 14.1 Be that as it may, the documents placed on record before us clearly reveal that there have been exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Revenue to assume jurisdiction by invoking the extended period of limitation since any allegation as to fraud or suppression would only be a whim and arbitrary. 15. Hence, we are prima facie satisfied that the Show Cause Notice No. 1/2012 dated 02.01.2012 and the Show Cause Notice No. 05/2012(CE) dated 02.02.2012 have been issued in a haste by invoking the larger period, for which no fresh material or facts were unearthed by the Revenue. Thus, we are of the view that the appellant should succeed on the limitation itself since we are satisfied that jurisdiction has been assumed without any basis, to deny the exemption and thereafter demand the Customs duty. 16. In that view of the matter, the impugned order which has upheld the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X
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