TMI Blog2024 (2) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... e said objection did not culminate in any proceeding to issue Show Cause Notice after the appellant filed a reply explaining the facts of their case. The department has failed to establish any grounds for invoking the extended period. The issue on limitation is answered in favour of the appellant and against the Revenue. The impugned order is set aside on the ground of limitation - Appeal allowed. - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND SHRI VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri S. Muthuvenkataraman, Advocate for the Appellant Shri N. Satyanarayanan, AC (AR) for the Respondent ORDER Brief facts of the case are that the appellants are manufacturers of ladies knitted brassieres, ladies briefs and ladies panties. They export their goods and also clear the same to DTA. On the basis of intelligence gathered, it was noticed that in respect of the clearances effected to the DTA, the appellants have sold almost all their goods only to M/s. Triumph International India Ltd. (herein after referred to as Triumph) and have paid duty on aggregate price. 2. However, on further verification, it was observed that Triumph have sold the above goods to oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value as provided under Rule 7 of CVR, 2007. 5. On the basis of such observation, Show Cause Notice dated 1.3.2013 was issued to the appellant for the period from 2/2008 to 5/2010 proposing to demand the short-paid duties along with interest and also for imposing penalty. After due process of law, the adjudicating authority confirmed the demand along with interest and also imposed equal penalty. Aggrieved by such order, the appellant is now before the Tribunal. 6. The learned counsel Shri S. Muthuvenkataraman appeared and argued for the appellant. It is submitted that the above Show Cause Notice has been issued after audit, which had taken place and the department had issued to the appellant letter dated 18.11.2010 raising the very same objection of undervaluation of goods cleared to DTA. The appellant had given a detailed reply wherein it was pointed out by the appellant that the objection raised by audit and demand of duty is on the basis of Central Excise Valuation Rules and the same would not apply being the clearances made by an EOU. The said explanation of the appellant was accepted and there was no further Show Cause Notice issued on the basis of such audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong application of provisions of law. 9. It is submitted that for the earlier period 2005 2008, audit was conducted and an objection of undervaluation was raised by issuing letter dated 18.11.2010. In the said letter, the department had raised demand quantifying the duty by applying Central Excise Valuation Rules. To such audit letter, the appellant issued reply dated 22.11.2010 explaining that being 100% EOU, the value arrived at as per Central Excise Act, 1944 r/w Central Excise Valuation Rules cannot sustain and that Customs Valuation Rules ought to have been applied. The appellant had fairly admitted that Triumph is a related party. Pursuant to the reply issued by the appellant, the department did not issue any Show Cause Notice within normal period and the appellant was under bonafide belief that the explanation given by the appellant is accepted by the department. In such reply, the appellant had raised their grounds of inadvertent omission to avail exemption of CVD under Notification No. 30/2004-CE. Later, the present Show Cause Notice dated 1.3.2013 was issued for the period 2/2008 to 5/2010 alleging that the appellant has suppressed facts with intent to evade paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30-3-2017 of the Principal Commissioner of Customs (Preventive), New Delhi, as well as the order of the Customs, Excise Service Tax Appellate Tribunal (for short 'CESTAT') dated 6-11-2017 [2018 (361) E.LT. 925 (Tri-Del.)). dismissing the appeal and sustaining the order of the Original Authority, revaluing the import consignments of the appellant, numbering twenty-one, for the period from December, 2012 to January, 2015. 2. The appellant is stated to be a regular importer of electric decorative lightings, and in the process of such imports, filed a bill of entry on 21.1.2015 at the ICD, Tughlakabad, New Delhi, for clearance of electric decorative lightings. These import consignments were of brand names 'Diyas' and 'mAntra', and the enquiry proceeded to ascertain whether the goods had been correctly valued for the purposes of customs duty. On completion of the enquiry, proceedings were initiated for revaluing the current import consignment, as well as past consignments within the aforesaid window, apart from the proposal for confiscation of goods and imposition of penalties under the provisions of the Customs Act, 1962 (hereinafter referred to as the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is therefore against the provisions of law. 15. The learned counsel has argued on the ground of limitation also. It is seen that an audit was conducted for the period 2005 2008 and audit letter was issued to the appellant dated 18.11.2010. The said audit objection had adopted provisions of Central Excise Valuation Rules and alleged that the appellant has undervalued the goods and the duty payable was quantified by applying Rule 9 of Central Excise Valuation Rules. To such audit objection, the appellant issued reply dated 22.11.2010. The appellant fairly accepted that Triumph is their related party. It was further explained in the reply that the department has wrongly adopted Central Excise Valuation Rules for arriving at the assessable value and that the correct law applicable would be Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. The relevant part of the reply dated 22.11.2010 is as under:- The objection in this para relates to alleged incorrect valuation on goods supplied by us as a 100% BOU to the alleged related person M/s. Triumph International Overseas Limited who in turn sell the goods at an alleged higher value. On perusal of the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
