JOE & CO Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The petitioner is an importer of Cement. He imported cement from Pakistan under four bill of entries on 09.11.2010, 27.12.2010, 28.04.2011, 28.04.2011. As per Counter Veiling Duty (CVD) under Serial No.1A(i) of Notification No.4/2006-CE, dated 01.03.2006 as amended, the petitioner's MRP was at Rs. 190/- per 50 kg., bag. There are certain conditions imposed under the notification dated 01.03.2006 for availing the exemption of Counter Veiling Duty (CVD). The petitioner has complied with the conditions and filed for exemption. However, by show cause notice dated 15.07.2015, the respondent called upon the petitioner to show cause as to why the concession availed by him should not be denied and recovery of duty with interest and penalty of the duty with interest and penalty should not be imposed. The petitioner submitted a detailed reply dated 27.10.2015 to the show cause notice. At the time of filing his reply, he was not in a position to explain the documents pertaining to the bill of entries, but, found complete set of sales invoices and sales tax return files. The respondents, vide Order-in-Original in Order No.82 of 2015 dated 20.11.2015 confirming the demand of differential duty made by him with an appropriate interest under Section 28 (AA) (1) and (2) of the Customs Act, 1962 [hereinafter referred to as "the Act"] and imposed a penalty of Rs. 5,37,998/- under Section 114 (A) of the Act. Against which, the petitioner preferred an appeal in order in Appeal No.8 of 2018, which culminated the impugned order dated 09.01.2018. The appellate authority has dismissed the same as it is barred by limitation specified under Section 128 (1) of the Act. Aggrieved over the the order, the petitioner is before this Court.

(2.) The petitioner has challenged the Order in Original and as well as the Order in Appeal on the ground that the order passed by the original authority is without application of mind and without taking into consideration the relevant materials. It is stated that the consignments are imported a long back ago and therefore, he was not in a position to produce the invoices as well as the bill of entries questioned by the authority. But, now, the petitioner traced those bill of entries and complete set of invoices with regard to the disputed amount. Further, the authority has also failed to furnish the relevant materials and the procedure adopted by him was not transparent. In view of the notification issued by the respondent in Notification No.4/2006-CE dated 01.03.2006, the petitioner is fully eligible to avail the exemption. The parameters influence the MRP price and in view of the material evidence produced by the petitioner, the demand of differential duty under Section 28 (4) of the Act does not arise at all and penalty cannot be imposed under Section 114 (A) of the Act.

(3.) As seen above, the appellate authority has rejected the petitioner's appeal on the technical ground of limitation. It is submitted that the relevant documents could not be produced before passing orders and the original authority has also not considered the materials produced before it at the time of passing orders.