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2021 (9) TMI 142 - AT - CustomsMis-classification and misdeclaration of imported goods - goods declared as Lime Mortar(Slaked lime) but goods were found to be in form of ash type powder - to be classified under CTH 25222000 or under CTH 38245090? - confiscation of goods - levy of penalty - demand of differential duty - entire case of the department is simply based on the test report of the product conducted by Customs House Laboratory, Kandla and opinion given by the testing authority - HELD THAT:- It is observed that the same goods was earlier tested when imported in 2013. When the following test report was given on the basis of which goods were cleared under CTH-25222000.“The sample is in the form of greyish powder is composed mainly of calcium oxide together oxides of Iron, Aluminium and silicious matter. CaO contain 82.8%. It has expanding property.” From the above report it is clear that the product is composed mainly of calcium oxide and very minimal portion is of Iron, Aluminium and siliceous matter. The calcium oxide contains 82.8%. With this report it cannot be said that the product is a preparation with additives. For the live consignment which was seized by CHL, Kandla issued report in questionnaire form an their opinion - Admittedly as per the test report the goods is mainly composed ofCalcium oxide.The other small portion of contents are iron, aluminium and silicious matters which obviously exits in any natural mineral product therefore, it is not established that the slaked lime is not a naturally occurred product but a preparation as contented by the revenue. Therefore, merely on the basis of the test report which is contrary to the opinion cannot be accepted. The quick lime when reacts with water it forms slaked lime and the slaked lime is calcium hydroxide. Accordingly, it is clear that the goods in question is slaked lime under chapter heading 2522. In view of the settled law, irrespective whether the classification claimed by the appellant is correct or not since the classification proposed by the Revenue is absolutely incorrect, the entire case of the Revenue will not sustain - revenue could not establish beyond doubt that the goods in question i.e. slaked lime (Lime Mortar) is classifiable under 38245090. Consequently, the goods are correctively classifiable under Chapter sub heading 25222000. The test of one particular consignment cannot be used to override the test conducted in respect of past consignments for deciding theclassification in respect of previous consignment test report of the same was not under dispute. Therefore, for this reason also the demand of duty amount, consequential penalty in respect of previous consignment is not sustainable on this ground also. Appeal allowed - decided in favor of appellant.
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