2025-VIL-2131-CESTAT-CHE-CU
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CUSTOMS CESTAT Cases

Customs – Import of cement, adoption of contemporaneous domestic RSP – Appellant imported Ordinary Portland Cement of Pakistan origin. Two Bills were classified under Sl. No. 1C of Notification No. 4/2006-CE for cement other than that cleared in packaged form, and one Bill under Sl. No. 1A(ii) for cement in packaged form with RSP exceeding Rs.190 - Department alleged that the cement was imported in 50-kg bags with RSP printed, and thus the Appellant had wrongly availed the benefit of Sl. No. 1C of Notification No. 4/2006-CE - Whether cement imported and sold exclusively to industrial/institutional consumers is eligible for Sl. No. 1C benefit, irrespective of packaging and RSP printing - HELD - At the relevant time, there was no self-assessment; hence the out-of-charge (OOC) order under Section 47 was an assessment order - Once an out-of-charge order is made without self-assessment, it functions as an assessment order and cannot be reopened by a simple show-cause notice. To revise such an assessment, customs authorities must use specific legal procedures outlined in the Customs Act, such as a review under Section 129D or reassessment proceedings. Accordingly, the SCN itself is without jurisdiction, rendering the demand void – Further, the fact that the cement was imported in 50 kg packaged bags does not disentitle the Appellant from the benefit of Sl. No. 1C, as the essential criterion is the nature of the buyer (industrial/institutional), not the form of packaging - Even cement in 50 kg retail-type bags qualifies for Sl. No. 1C so long as the buyers are industrial/institutional consumers and the fact that goods are in bags does not convert Industrial Sale into Retail Sale - The essential criterion for Sl. No. 1C is the nature of the buyer (industrial/institutional), not the form of packaging, and this condition is fully satisfied. Accordingly, the lower authorities erred in rejecting the exemption merely because the cement was packaged or had printed MRP - The Appellant is eligible for the benefit of Sl. No. 1C of Notification No. 4/2006-CE. The impugned order is set aside and the appeal is allowed - Whether Revenue can adopt contemporaneous RSP of domestic cement to re-fix RSP of imported cement - HELD - The Revenue's attempt to substitute the importer's declared RSP (lower) with the domestic cement manufacturers' RSP (higher) as the contemporaneous import price is impermissible. The RSP must be the RSP of the imported goods, not domestic goods, and there was no evidence of the importer selling the goods at a higher RSP than declared – The adoption of indigenous RSP for imported goods has been held impermissible. Thus, the demand based on enhanced RSP is factually baseless and legally untenable - Whether extended period under proviso to Section 28 is invokable - HELD – The invocation of the extended period is unsustainable, as there was no evidence of deliberate suppression, fraud, or wilful misstatement. The dispute, at best, concerned the interpretation of the Notification, for which invoking the extended period is impermissible - Once the extended period fails, the penalty under Section 114A automatically fails. Further, the Appellant acted based on an interpretation consistent with earlier Tribunal decisions, and hence, the equal penalty under Section 114A cannot survive.
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