CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL CHENNAI REGIONAL BENCH – COURT No. III Customs Appeal No. 41033 of 2016 (Arising out of Order-in-Appeal No. 26/2016 dated 23.02.2016 passed by Commissioner of Customs &

Central Excise (Appeals-2), No. 1, Williams Road, Cantonment, Tiruchirapplli – 620 001)

Mr. S. Sutharson ...Appellant No. 161-C/1, Cruzpuram, Tuticorin – 628 001.

Versus Commissioner of Customs ...Respondent Tuticorin Commissionerate, Custom House, New Harbour Estate, Tuticorin – 628 004.

APPEARANCE:

For the Appellant : Mr. B. Satish Sundar, Advocate For the Respondent : Ms. O.M. Reena, Authorised Representative CORAM:

HON’BLE MR. P. DINESHA, MEMBER (JUDICIAL)

HON’BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL)

FINAL ORDER No. 40285 / 2026 DATE OF HEARING : 15.12.2025 DATE OF DECISION : 23.02.2026 Per Mr. VASA SESHAGIRI RAO The present appeal is directed against Order-in-

Appeal No. 26/2016 dated 23.02.2016 whereby the Commissioner (Appeals) upheld Order-in-Original No. 34/2015 dated 28.03.2015 confirming differential Countervailing Duty (CVD) of Rs. 2,03,887/- under Section 28(4) of the Customs Act, 1962 along with interest under Section 28AA and imposed penalty equal to duty under Section 114A of the Act.

1.2 The appellant, S. Sutharson, Tuticorin, a Government contractor, imported Ordinary Portland Cement 43 Grade from Pakistan during March 2009 to September 2011 through Tuticorin Port under thirteen Bills of Entry. In ten Bills of Entry, concessional CVD under Clause 1C of Notification No. 04/2006-CE dated 01.03.2006 (as amended) was claimed; in two Bills of Entry, concession under Clause 1A(ii) was claimed; and in one Bill of Entry, tariff rate was paid. The Show Cause Notice dated 14.03.2014 was issued alleging misdeclaration of Retail Sale Price (RSP) at Rs. 190/- per 50 kg bag, wrongful availment of Clause 1C benefit, non- fulfilment of the definition of “industrial/institutional consumer” under Rule 2A(b) of the Standards of Weights and Measures (Packaged Commodities) Rules, 2006, and absence of direct purchase from the manufacturer. Differential duty of Rs.2,03,887/- was demanded under Section 28(4) along with interest and penalty, which came to be confirmed and upheld in appeal, leading to the present Appeal before this Tribunal.

2. The Ld. Advocate Mr. B. Satish Sundar appeared on behalf of the Appellant and advanced detailed submissions in support of the Appeal and the Ld. Authorized Representative Ms. O.M. Reena appeared for the Revenue and defended the Impugned Order.

3. The Ld. Advocate appearing for the Appellant made the following submissions: -

3.1 The demand is barred by limitation as all Bills of Entry were assessed after full disclosure of material facts, including High Sea Sale agreements and actual user declarations, and the term “HSS” was expressly declared in the Bills of Entry. It was contended that there was neither suppression nor wilful misstatement so as to justify invocation of the extended period under Section 28(4) of the Customs Act, 1962. On merits, it was argued that although the cement was purchased on High Sea Sales basis, the goods were shipped directly by the foreign manufacturer and all shipping documents reflected the manufacturer as shipper; High Sea Sale being a recognized commercial practice, the procurement should, in substance, be treated as direct purchase from the manufacturer. It was further submitted that the cement was used exclusively for Government construction contracts and not for retail sale, and therefore the appellant qualifies as an “institutional consumer” under Rule 2A(b). Reliance was placed on Heidelberg Cement (India) Ltd. v. CCE, 2015 (315) ELT 53 (Tri.-Mumbai) and Ultratech Cement Ltd. v. CCE, 2015 (317)

ELT 505 (Tri.-Del.).

3.2 The appellant also relied on Jayanti Food Processing (P) Ltd. v. CCE, 2007 (215) ELT 327 (SC) to contend that in the absence of retail sale, declaration of RSP is not attracted, and on Northern Plastics Ltd. v. Collector, 1998 (101)