M/S.Jaswal Neco Ltd vs Commnr. Of Customs, Visakhapatnam

2. At the time of import, the appellant furnished a bond containing an undertaking to pay duty on imported goods cleared under Notification No.30/97 and 41/97 in the event of failure to fulfill its export obligation.

6. The Commissioner of Customs vide Order dated 4.11.2004 confirmed the duty demand of Rs.3.37 crores and imposed a penalty of Rupees Twenty lakhs. According to the learned Commissioner, since the appellant after issuance of the show cause notice paid duty of Rs.1,66,18,563/-, the differential duty to be paid amounted to Rs.1,70,98,510/-. Further, interest on the said amount at 24% was also held to be payable.

7. The appellant appealed to CESTAT. Vide the impugned judgment dated 18.8.2005, CESTAT partly allowed the appeal by remanding the matter to the original authority to calculate duty, interest, and penalty in accordance with the findings contained in its judgment. The basic difference between CESTAT’s judgment and that of the Commissioner is that interest was reduced from 24% to 15%, but the Anti-dumping duty was increased by applying the higher rates specified by the final Notification No.69 of 2000.

dumping duty of an amount equivalent to the rate indicated in column (3) of the said Table, converted into Indian currency with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46 of the said Customs Act, 1962 (52 of 1962).” |S. No. Name of the Exporter Rate per | |metric tone | | (2) | |(3) | |1. China National Coal Industry | |US$ 18.35 | |Import/Export (Group) Corporation | |2. China National Mineral Import and US$| |24.51 | |Export Corporation. | | | |3. Shanxi Coal Import Export Group US$| |19.22 | |Corporation. (Minmetal Group) | |4. Ningxia Xiacheng Import & Export US$ | |24.95 | |Corporation | |5. China North Industries Corporation | |US$ 22.69 | | | |6. Shanghai Pacific Chemicals (Group) US$ | |19.22 | |Corporation Ltd. | | | |7. All other exporters. | |US$ 24.95 | Nothing contained in this notification shall apply to imports of Metcoke by a manufacturer of pig iron or steel using a blast furnace if he follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996.”

There is, therefore, no substantive provision in the Central Act   which obliges the assessee to pay interest on delayed payments of Central sales tax.

24. Regulatory duty of customs.

and

a) the special additional duty referred to in section 3A;

b) the safeguard duty referred to in sections 8B and 8C;

c) the countervailing duty referred to in section 9;

d) the anti-dumping duty referred to in section 9A; and

a) the safeguard duty referred to in sections 8B and 8C;

b) the countervailing duty referred to in section 9;

c) the anti-dumping duty referred to in section 9A;

d) the special additional duty referred to in sub-section (1); and

36. Though it is stated that the object of the amendment is to clarify and set at rest doubts, it is not necessary to decide whether this amendment is clarificatory and, therefore, retrospective in view of what has already been held by us above.

37. As far as penalty is concerned, we feel that the appellant before us has not diverted goods meant for export to the domestic tariff area. We are satisfied that market considerations made it difficult, if not impossible, for the appellant to fulfill its export obligations and are, therefore, of the view that the penalty imposed in the present case ought to be set aside.

38. The appeal is, accordingly, allowed in the aforesaid terms and the judgment of CESTAT is set aside.

August 4, 2015.