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2016 (3) TMI 295 - AT - CustomsExtended period of limitation - Classification of goods - Plant Bio Fertilizer or Pesticides - Goods imported and declared as Bio-Fertilizer alleged as misdeclaration and suppression of facts to evade customs duty. - Held that:- the composition of the imported goods is a mixture containing matrine (oxymatrine) 0.36%, Nitrogen 2369.9 5g/g, Phosphorous 1389.3 5g/g and Potassium 18491 5g/g, Magnesium 858 5g/g , Manganese 10.2 5g/g and also contains Iron, Zinc, Copper, Calcium, Silicon and other minerals. The classification and assessment of imported goods as "Plant Bio-Fertilizer" was done based on the Test Reports and goods were cleared during the relevant period, so, the question of alleging misdeclaration or suppression of facts by the appellant does not arise. The revenue has not adduced any evidence that the said goods imported as "Bio-Fertilizer" were sold or marketed as "Pesticides" as no farmer or cultivator will ever buy the product which is described as "Bio-Fertilizer" but use it for "Pesticides" purpose. Therefore, in the absence of any evidence contrary to the declared goods cleared in the past by the appellants, it cannot be said that the appellants have suppressed the facts or misdeclared the goods merely based on the report of live consignment and on the basis of the CRCL report of Customs the goods were rightly classified as “Plant Bio-Fertilizer”. Confiscation and Imposition of Redemption fine in respect of live consignment - Sections 111 (d), (m) and (o) of the Customs Act, 1962 read with Section 3 (3) of the Foreign Trade (Development and Regulation) Act 1992 and Section 17 of the Insecticides Act, 1968 - Held that: based on the test reports, the adjudicating authority classified the goods as Pesticides and the appellants have not contested the classification of the goods covered in the live consignment. As the import of Pesticides are prohibited under Section 17 (1) (a) of Insecticides Act, 1968 and the appellants have not obtained registration from the Central Insecticide Board (CIB) for the import of Pesticides, therefore, the goods are liable to be confiscated under Section 111 (d) of Customs Act, 1962. Also as the goods are not re-exported and they have abandoned the goods and the goods are still with Customs custody , the goods are allowed for re-export on imposition of Redemption fine of ₹ 5 Lakh. Confiscation and Confirmation of Differential duty - In respect of past 16 consignment - Held that:- by following the Hon’ble Supreme Court decision in the case of Sab Nife Power Systems Ltd. [1999 (12) TMI 410 - CEGAT, MADRAS], the goods imported in the past were correctly and fully declared in the Bill of Entries as per the invoice and as per the analysis certificate of the supplier which is confirmed by the CRCL test report and there is no misdeclaration or suppression with intent to evade duty. Therefore, there is no requirement of re-classification of the goods for the past 16 consignments and demand of differential duty under Section 28 of the Customs Act. Imposition of penalty - Under Section 112(a) of the Customs Act, 1962 for live consignment and under Section 114/114A ibid for the past consignment - Held that: the penalty to be imposed on the importer and its Managing Partner under Section 112(a) ibid and not to be imposed under Section 114/114A ibid. - Decided partly in favour of appellant
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