MILTON PLASTICS LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS application is for waiver of pre -deposit of duty of Rs. 1,05,12,925/ - and penalty of Rs. 50 lakhs. We have heard Shri Sridharan appearing along with Shri Vishwanathan for the applicants and Shri A.K. Jain for the Revenue.

(2.) THE applicants imported a number of consignments of polyols and isocyanates without payment of duty in terms of notification 72/91 -Cus as amended. The condition for such import were that the goods would be used in the manufacture of thermoplastic polyurethane and that within three months or the extended period as the customs allow, the end use should be furnished to the Customs authorities. The imports were made during the period February, 1992 to June, 1993. show cause notice dated 10/02/2000 alleged that the imported goods were not used for the manufacture of the listed end product. A technical opinion given by the Dy. Chief Chemist was cited to the effect that the sample of the final products showed characteristics of rigid foam and could not be called as thermoplastic polyurethane. The duty as cited above was demanded without quoting the relevant section of the customs Act, 1962. Allegation was made that the goods earlier imported were liable to confiscation in terms of Section 111(o) of the Act. After hearing the importers the Commissioner passed orders confirming the duty and imposing the penalty as cited above. He observed that although the assessees had stated that the bond for each individual consignment had been discharged on the end -use certificate being shown the assessees had filed to place before him such evidence. In dealing with the plea of limitation under the Customs Act, 1962 he observed that time limit did not apply in view of the deliberate intention to evade payment of duty. He also mentioned that in terms of the bond/undertaking the demand could be made. For imposition of fine he cited the Supreme Court judgment in the case of Weston Components Ltd. v. CC, New Delhi 2000 (115) ELT 278. He discounted the certificate given by the appellants form Shriram Institute has got in their favour. Hence the appeal and the applications.

(3.) IN terms of Section 28(1) of the Customs Act, 1962 the demand is clearly hit by limitation. As regards the observation of the Commissioner that the demand could be enforce in terms of the bond/undertaking, we find that the details of such bonds/undertaking are not given in the show cause notice at all. The show cause notice gives details of 24 imports along with the bills of entry numbers, etc. It is presumed that in the case of each importation the assessee had given a bond. If the Commissioner was of the view that the promise made under those bond could be invoked and put to test it was required to show the details of the bond. It was the case of the assessee that in each case the bonds were discharged. In view of the time that elapsed they were not able to furnish the proof. We observe that both sides lack the vital documents on which such large amount of duty is sought to be confirmed. At the stage of hearing of the Stay applications this benefits the applicants more.