2022 (9) TMI 1014 - HC - Customs

Extended period of limitation - suppression of facts or mis-declaration or not - unreasoned and non-speaking order or not - classification of imported goods - Neutral Pellets - to be classified under Custom Tariff Heading (CTH) 17029090 or not - HELD THAT:- Section 28 of the Customs Act envisages that where any duty has not been levied or not paid, inter-alia, has been short-levied or short-paid by reasons of (a) collusion; (b) any willful misstatement and, (c) or suppression of facts, by the importer or the exporter, or the agent or employee, the proper officer shall, within five years from the relevant date, to serve notice on the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified in the notice.

The principle laid down in the judgment in M/S. UNIWORTH TEXTILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE. RAIPUR [2013 (1) TMI 616 - SUPREME COURT] which essentially is that with a view to invoke the extended period of limitation, there ought to be a positive act and not merely a failure to pay duty which is not on account of any fraud, collusion or willful misstatement or suppression of facts.

The CESTAT, in the present case, has clearly held that the respondent had been importing the goods under CTH 1702, which the learned counsel for the parties agree, attracted the same rate of duty, as the goods imported and falling under CTH 1704 and held that the department was very well aware of the said classification and that in the past, assessments were completed based thereupon. It was, thus, held that only because there was a change of view by the department, the respondent could not have been said to have either mis-declared or suppressed facts in classifying its goods at the time of its import under CTH 1702.

Thus, it appears that had it been a case of a deliberate and willful attempt on the part of the respondent to suppress the facts or make any willful misstatement for purposes of evading the payment of duty, then it would have in the past, perhaps claimed the benefits by classifying it under CTH 1701, when it attracted a lower rate of duty or was completely exempt.

Appeal dismissed.