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2021 (12) TMI 90 - HC - CustomsValidity of not considering the effect of earlier adjudication, pertaining to the same Assessee - extended period of limitation - correctness of demand of differential duty when the same is available to the appellant as Modvat Credit - Mis-description or suppression in the matter of classification - HELD THAT:- If the challenge to the order of the Tribunal dated 13.12.2016 in Appeal No. C/723/04 passed by the CESTAT, Court No.II impugned in this appeal is considered, it is seen that the order passed by the Tribunal in Appeal Nos. C/499 and 620/2004 on 22.02.2005 as well as the order passed by the Tribunal in Appeal No. C/02/06 also on 13.12.2016 by Court No.1 have attained finality. As regards the aspect of classification of the product in question, its classification under CTH 3824.90 as directed by the Commissioner (Appeals) on 29.03.2004 was accepted by the Assessee by not pursuing Appeal No. C/499/04 preferred by it before the Tribunal. Similarly, classification of the same product by the Commissioner (Appeals) vide order dated 06.10.2005 under Chapter sub-head 3824.90 was not challenged further by the Assessee. The Revenue had challenged the observations pertaining to mis-description in Appeal No. C-02/06 before the Tribunal but that appeal was also dismissed on 13.12.2016. The classification of the product imported is thus under Chapter sub-head 3824.90 which does not require re-examination. Mis-description or suppression in the matter of classification - HELD THAT:- The Tribunal (Court No.1) while passing this order dated 13.12.2016 found that the first appellate Court had relied upon the certificate issued by the supplier of the goods to come to the conclusion that the charge of mis- declaration did not arise. This order dated 13.12.2016 passed in Appeal No. C-02/06 has attained finality between the parties. It is also relevant to note that the allegation of mis-declaration is based on the same material and it is also not in dispute that the Assessee had declared the said goods as being coated with stearic acid 2T SA. The Tribunal in its impugned order has not assigned any independent reason for upholding the show-cause notice dated 30.01.2004. Once it is found that there was absence of mis-declaration or suppression facts which finding attained finality between the parties pursuant to the order dated 06.10.2005 passed by the Commissioner (Appeals) as affirmed by the Tribunal on 22.02.2005, there would be no occasion to invoke the provisions of Section 28(1) of the Act of 1962 for extending the period of limitation for issuing the show cause notice - It is thus found that the Tribunal while passing the impugned order failed to consider the appeal in its proper perspective and ignored the earlier adjudication dated 06.10.2005 when the Commissioner (Appeals) decided the appeal in favour of the Assessee by holding the goods to be classified under CTH 3824.90. A further finding was also recorded that there was no mis-declaration or suppression of correct description of the goods in question by the Assessee. The substantial questions of law are accordingly answered in favour of the Assessee. Appeal allowed - decided in favor of appellant.
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