Page 219 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] MULCHAND M. ZAVERI v. COMMISSIONER OF CUSTOMS, AHMEDABAD 441

Considering the facts and circumstances of the case and the fact that duty evaded
in this consignment is approximately 18 lakhs, we reduce the said fine to Rs. 15
lakhs. The penalty of Rs. 10 lakhs, imposed under [Section] 112(a) in respect of
the confiscated consignment is also upheld.
8. It has been argued that demand of differential duty is barred by limi-
tation. 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 submitted all requisite
documents like purchase invoices, packing lists/air way bills, certificate of coun-
try of origin etc. and the goods were available before the customs 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 classi-
fication and admissibility of exemption are questions of law involving interpreta-
tion therefore, no mala fide can be attributed to the assessee in such case. It was
also argued that earlier a similar issue was raised before 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 concentrate by proper Customs
Officers upon proper scrutiny and verification, irrelevance of WhatsApp mes-
sages and thus, wrong invocation of longer period of limitation in these proceed-
ings.
8.1 We find that the WhatsApp messages clearly show that the previ-
ous consignments were produced in the workshop. It has been corroborated by
the detailed analysis in the impugned order. It has also been corroborated by the
recovery of document from appellants premises and also from the sample tested.
The appellants had contended that the assessment of previous consignments was
done after drawl of sample and therefore the assessment cannot be reopened by
issue of this notice. While there is no clear evidence of drawl of samples in earlier
consignments, we find that the same will not have any impact on the present
proceedings. Samples may be drawn for testing or valuation. The actual compo-
sition of the sample has no relevance to the facts of the present case. Even if the
samples answered to all physical and chemical parameter of ‘Ore’, the same does not qual-
ify to be ‘ore’ for the purpose of the Tariff or the notification. As provided in
HSN/Chapter notes and as discussed in Para 5 above, unless the material is of
natural origin, and not subjected to any processes not normal to metallurgical
industry the same cannot be called ‘ore’. Taking of samples of previous consign-
ment, if any, for chemical/physical testing or valuation purposes, does not help
the case of the appellant, if the fact that the said goods were produced in a work-
shop by mixing gold, sand and other materials is suppressed. Thus the fact that
samples were taken of earlier consignments or not, does not affect the outcome of
this case. Even if those samples were taken and tested it might not have been
possible to detect that the same were produced in a workshop and were not of
natural origin. In view of the fact that an elaborate mechanism for hoodwinking
Customs was devised by the appellant the intention to evade the customs duty
cannot be doubted. Moreover we find that the issue in the said order of Commis-
sioner (Appeals) referred in Para 8 above is very different and only technical in
nature. It has no bearing on this case. This is a case involving fraudulent inten-
tions and actions. In view of above the demand of duty and interest on past con-
EXCISE LAW TIMES  1st May 2020  219