Page 199 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] MULCHAND M. ZAVERI v. COMMISSIONER OF CUSTOMS, AHMEDABAD 421

duty is barred by limitation. He argued that the past consignments were assessed
as “Natural Gold Ore Concentrate” and concessional rate of Customs duty, by
classifying under CTH 2616 90 20 was allowed by proper officer. They had sub-
mitted all requisite documents like purchase invoices, packing lists/airway bills,
certificate of country of origin etc. and the goods were available before the cus-
toms officers and they could have ascertain the composition of the goods. He
argued that samples were also taken by the Customs Officers. Learned Counsel
submitted that classification and admissibility of exemption are questions of law
involving interpretation therefore, no mala fide can be attributed to the assessee in
such case.
2.7 Learned Counsel argued that earlier a similar issue was raised be-
fore the Customs and the Commissioner (Appeals) decided in appellant’s favour
in the said consignment, the goods were classified under CTH 2616 90 10 and full
exemption from CVD was granted by virtue of Serial No. 5 of Notification No.
4/2006-C.E. He argued that the said order-in-appeal has bearing on issues like
the bona fide nature of our imports, assessment of consignments of gold ore con-
centrate by proper Customs Officers upon proper scrutiny and verification, irrel-
evance of Whatsapp messages and thus, wrong invocation of longer period of
limitation in these proceedings.
2.8 Learned Counsel pointed out that CTH 2612 90 10 covers “Gold
Ores and Concentrates”. He pointed out that, for Ores of Tariff Headings 2601 to
2617 are eligible for the benefit of reduced rate of CVD by virtue of Notification
No. 12/2012-C.E. He pointed out that term “Ores” is statutorily defined under
Note No. 2 of Chapter 26 to mean - “Minerals of mineralogical species actually used
in the metallurgical industry for the extraction of mercury, of the metals of Heading 2844
or of the metals of Section XIV or XV, even if they are intended for non-metallurgical
purposes.” He argued that this definition indicates that any mineralogical specie
actually used for extraction of metals including gold, is “Ore” as defined by the
Parliament even though such goods were intended for non-metallurgical pur-
poses. He pointed out that the goods in question have been imported for extract-
ing gold there from and therefore, they are ‘Ore’ as per Note 2 of Chapter 26 of
the Customs Tariff.
2.9 He further pointed out that there is no violation of any nature
committed by the appellant and there is no question of imposition of penalty. He
also argued that penalty has been imposed on the firm as well as on the partner.
He relied on the decision of Hon’ble Gujarat High Court in the case of Jaiprakash
Motwani - 2010 (258) E.L.T. 204 (Guj.). He further argued that no penalty can be
imposed on the firm as there was no mala fide. Learned Counsel further argued
that the penalty imposed is very high. He also argued that redemption fine of Rs.
60 Lakh is too high as the duty involved is only Rs. 18 Lakhs.
3. Learned Authorised Representative for the Department relied upon
the impugned order. He took us through the show cause notice where the prod-
uct imported by the appellant and the evidence in support of revenue claim is
described. He further relied on the statements of partner Shri Sanjay Patel. He
pointed out that everything was admitted and the statement was never retracted.
He further relied on the documents at pages 31 and 33 of [relied upon document
No. 12] contained in the file seized from the appellant’s premises under Pan-
chanama dated 24 January, 2014 which showed detailed calculation of the cost
and material involved in production of goods in Dubai. Learned Authorised
EXCISE LAW TIMES  1st May 2020  199