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2016 (12) TMI 137 - CESTAT MUMBAIMis-declaration of imported machine as Dairy Machine - exemption under serial No. 11 of Notification No. 6/2006- CE dt. 01.03.2006 - classification of imported machine - The investigation conducted by the department reveals that whereas out of the 5 consignments the first, fourth and fifth consignments were cleared by declaring the goods under the respective HS Codes and suppliers invoices. In case of 2nd and 3rd consignments cleared under Bill of Entry No. 763776 dt. 03.05.2007 and BE No. 801219 dt. 18.06.2007, the goods were shown as ‘Dairy machines’ and were cleared by availing exemption from CVD in terms of Notfn. No. 6/2006 - CE dt. 01.03.2006. Held that: - It was during investigation that the officers found that the original ‘Specification of Production equipment’ Sheets (SPE Sheets) received from the supplier containing HS codes were altered by the importer so as to show the same as ‘Dairy machines’ - In view of the fact that the goods were correctly classifiable in the SPE Sheets as per their respective description and individual function but were changed by the Appellant’s employee in consultation with the Management, we are of the view that the goods does not merit classification as parts of dairy Machinery. For the reasons stated above and looking to the fact that the issue involves of intended mis-declaration, mis-classification and suppression of facts we do not find any infirmity in the order passed by adjudicating authority and uphold the same in as much as the same is related to Appellant M/s Yakult Danone (India) Pvt. Ltd. As regard penalty imposed upon Shri Kiyoshi Tatsui Oike, Managing Director is concerned we find that he was concerned with overall working and not particularly involved in any contumacious conduct. The correspondence for changes of HS codes and alteration of SPE sheets was an act between its parent company M/s Yakult Honsha Ltd, Japan and Mr. Tomoshi Suzuki on the advice of Consultant M/s SBBFL. We thus find that no active involvement of Shri Oike is appearing in record that he orchestrated the alleged acts of violation of Custom laws and intended to cause revenue loss. We therefore do not find it fit to impose penalty and set aside the penalty imposed upon him - As regard penalty upon Shri Anil Choudhary is concerned, we find that he was merely an employee who acted on the directions of the company and had no personal involvement. We therefore do not find it fit to impose penalty upon him. The penalty upon Shri Anil Choudhary is therefore set aside. Appeal dismissed - decided against appellant-assessee.
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