2025(03)LCX0140
Raza International
Versus
Commissioner of Customs (Port)
Customs Appeal No. 77445 of 2019 decided on 26/03/2025
IN THE CUSTOMS, EXCISE &
SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH – COURT NO.2
Customs Appeal No. 77445 of 2019
(Arising out of Order-in-Appeal No. KOL/CUS(PORT)/111/2019 dated 27.09.2019 passed by Commissioner of Customs (Appeals), Kolkata.)
M/s Raza International,
(28, Rabindra Sasrani, 3rd Floor, Kolkata-700073)
...Appellant
VERSUS
Commissioner of Customs
(Port), Kolkata,
(Customs House, 15/1, Strand Road, Kolkata-700001.)
.. ...Respondent
APPERANCE :
Shri B. N. Pal, Advocate for the Appellant
Shri S. Debnath, Authorized Representative for the Respondent
CORAM:
HON’BLE MR. R. MURALIDHAR MEMBER (JUDICIAL)
HON’BLE MR. RAJEEV TANDON MEMBER (TECHNICAL)
Final Order No. 75787/2025
DATE OF HEARING: 11.03.2025
DATE OF PRONOUNCEMENT: 26.03.2025
PER R. Muralidhar:
The appellant had imported some
goods under Bills of Entry on 13th April, 2011 and 28th
April 2011. The appellant had claimed SAD exemption under Notification No.
20/2006-CUS dated 1.3.2006 applicable for Sl. No. 50 of the Notification. The
Bills of Entry were presented on self-assessment basis.
2. On 25.05.2015, a Show Cause Notice was issued stating that in respect of
these two Bills of Entry, the exemption under SAD is not applicable. It was
stated that the Notification No. 20/2006-CUS dated 1.3.2006 extending the SAD
exemption is no more available from 8.4.2011. The Show Cause Notice proposed to
demand Rs.2,83,145/- as Customs Duty, which was payable as SAD at the time of
imports, along with interest and penalty.
3. After due process, the adjudicating authority confirmed the demand and held
that the appellant is liable to pay Rs.2,83,145/- along with interest and also
he imposed a penalty of equivalent amount. Being aggrieved, the appellants filed
their appeal before the Commissioner (Appeals) on 22.04.2016.
4. The Commissioner (Appeals), vide OIA dated 27.09.2019 has dismissed the
appeal filed by the appellant on the ground that the appellant has not appeared
when the hearing was fixed on 22.09.18.03-2019 and 21.05.2019 and 27.08.2019. He
held “law helps those who are vigilant and not those who go to sleep”.
Accordingly, without going into the merits, he has dismissed the appeal. Being
aggrieved, the appellant is before the Tribunal.
5. The Learned Advocate appearing on behalf of the appellant submits that the
goods were cleared under proper Bills of Entry by claiming the exemption under
Notification No. 20/2006-CUS towards the exemption for SAD. The goods were
cleared after the exemption was granted by the customs authorities and no query
was raised. Only after about 5 years, Show Cause Notice dated 25.05.2015 was
issued on the grounds that under the Finance Act 2011, there was an amendment in
the 13th Schedule provided under Section 78 because of which, with effect from
8.04.2011, the SAD exemption is not available to the goods imported by the
appellant. The appellant, both before the adjudicating authority as well as
before the Commissioner (Appeals), has taken a specific pleading that there was
no suppression on the part of the appellant and they had duly declared this
Notification number while clearing the goods for claiming the SAD exemption.
Therefore, in the absence of suppression, the Show Cause Notice could not have
been issued after more than 4 years of the import of the goods, by invoking the
extended period provisions.
6. Therefore, the main pleading of the appellant is on the ground that there was
no suppression on their part and accordingly, the SAD amount could not have been
demanded after more than 4 years from the date of clearance of the goods after
the appellant has clearly indicated in the Bill of Entry that they are claiming
the exemption under Notification No. 20/2006. On a specific query from the Bench
as to whether this pleading was taken up before the Commissioner (Appeals), the
Learned Advocate takes us through to Para 4 (A) of the Appeal filed by them
before Commissioner (Appeals) wherein they have taken the stand that Show Cause
Notice is barred by limitation.
7. He also takes us through to Para 5 about the allegation of the Revenue about
the amendment taken up under 13th Schedule with effect from 8.4.2011 and the
appellant’s pleading that on the date of their clearance they were not aware of
this amendment and that is why they had claimed the SAD exemption. As the
department was aware of this amendment with effect from 8.4.2011, there was no
necessity for them to wait for the next more than 4 years to issue the Show
Cause Notice. Accordingly, even before the Commissioner (Appeals) they had taken
the plea that the demand was time barred. In view of these submissions, the
Learned Advocate prays that their appeal may be allowed.
8. The Learned A.R. appearing on behalf of the appellant submits that the
amendment was carried on with effect from 8.4.2011 and the imported goods have
been cleared on 13.4.2011 and 28.4.2011 by which time the amendment was already
in place. Therefore, the A.R. submits that the Department was justified in
issuing the Show Cause Notice by invoking the suppression provisions.
9. Heard both sides perused the appeal papers and submissions made before us.
10. We find that the Commissioner (Appeals) has dismissed the appeal only on the
ground that the appellant has not appeared before him whenever the hearings were
granted to him. When the appeal has been filed alongwith the Statement of Facts
and Grounds of Appeal taken by the appellant, it is incumbent on the
Commissioner (Appeals) to go through these details and pass a detailed order on
an ex-parte basis even if the appellant does not come for the Hearing. The
appellant has demonstrated before us that in the CA-1 filed on 22.04.2016, in
the Grounds of Appeal and in the Statement of Facts, they have clearly taken
stand about the Show cause being barred by limitation.
11. The Commissioner (Appeals) was bound to consider this and give a finding as
to why it is not acceptable to him in case the OIA is decided against the
appellant. This has not been done. We find that the Department has issued the
Show Cause Notice on the ground that by way of amendment carried out in Finance
Act 2011, effective from 8.04.2011, under the 13th Schedule because of which the
exemption granted to SAD is no more available to the appellant. On factual
basis, we find that the imports have taken place on 13.04.2011 and 28.04.2011
that is immediately after a few days after this amendment was carried out. While
the party can be pardoned for not going through this amendment and still
claiming the SAD, it was also for the officers of the customs to check the Bills
of Entry and immediately point out as to why this SAD exemption was being
claimed when this amendment has already taken place with effect from 8.04.2011.
This was not done.
12. The mistake of the party can be taken as a normal mistake committed by any
importer when an amendment is carried out just a few days before the actual
import. On the other hand, even after coming to know that this amendment has
taken place on 8.04.2011, the Department has not come out with any explanation
as to what made them wait for more than four years to issue the Show cause
notice on 25.05.2015 by invoking the extended provisions of the Appellant to
demand the differential Customs Duty. We do not find that the Department has
made out any case of suppression on the part of the Appellant.
13. In view of the forgoing, we set aside the impugned order and allow the
appeal filed by the Appellant.
14. The Appellant would be eligible for consequential relief, if any, as per
law.
(Pronounced in the open court on……26.03.2025.)
Sd/-
(R. Muralidhar)
Member (Judicial)
Sd/-
(Rajeev Tandon)
Member (Technical)