2025 (6) TMI 1280 - AT - Customs

Classification of imported goods - Architectural Gypsum Moulding products - classifiable under Customs Tariff Heading (CTH) 2520 2090 or under CTH 6809 9000? - suppression and mis-declaration of facts or not - entitlement for exemption under N/N.12/2012 (Sl. No.108) dated 17.03.2012 - scope of SCN - HELD THAT - The items imported by the appellant clearly fall under Chapter 6809 as articles of plaster as the impugned products are described as Gypsum Plaster Moulding Products (Ceiling Cornice Medalliaon Panels Pillars Frames etc.) and the catalogue of the supplier also describe them as architectural and decorative plaster moulding products. The Revenue has also placed on record Bills of Entry dated 17.12.2013 much prior to the impugned imports to show that the similar products which are described as Architectural Gypsum Moulding Products HKH C975 HKH C446 HKH C949 HKH C449 etc. were classified by the appellant under CTH 6809 9000. It is also a fact that the classification was mis-declared only to avail the benefit of Notification No.12/2012 which was otherwise not available to the products classifiable under CTH 6809. Therefore it is a clear case of suppression and misdeclaration since the appellant had now classified the products under CTH 2520 knowing very well that they are rightly classifiable under 6809. The original authority had observed that there is no evidence in the nature of e-mail or any other correspondence to prove the fact that it was the CHA (Cargomar) who had directed/advised the appellant to mis-declare the classification of the impugned products and moreover the benefit of the Notification based on mis-declaration is to accrue to the importer and not to the CHA. The Commissioner (Appeals) in the impugned order has not brought on record anything to show that the CHA was the person responsible for mis-declaring the products. In view of the above there are no reason to impose penalty on the CHA. The customs broker had no role to play in mis-declaring the product the question of prohibiting him from operating within the jurisdiction of Bengaluru Customs under Regulation 23 of CBLR 2013 does not arise. Conclusion - i) The impugned products are correctly classifiable under Chapter Heading 6809 as articles of plaster and not under Chapter 25 which covers gypsum and plasters in crude or minimally processed forms. ii) The appellant s classification under CTH 2520 2090 was a deliberate mis-declaration to avail exemption under Notification No.12/2012 which is not applicable to products classifiable under Chapter 68. The impugned order Order-in-Appeal No. 932-933/2017 is confirmed only to the extent of confirming the demand of duty along with interest on the appellant M/s. J P Traders and imposition of penalty u/s 114A but setting aside the penalty u/s 114AA - appeal disposed off.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal include:

• Whether the imported products described as 'Architectural Gypsum Moulding products' are correctly classifiable under Customs Tariff Heading (CTH) 2520 2090 or under CTH 6809 9000;
• Whether the appellants are entitled to the exemption under Notification No.12/2012 (Sl. No.108) dated 17.03.2012;
• Whether the reclassification by the Revenue and consequent demand of differential customs duty along with interest is justified;
• Whether the appellants' classification amounted to mis-declaration with an intention to evade duty, thereby justifying imposition of penalties under Sections 114A and 114AA of the Customs Act, 1962;
• Whether the Customs Broker M/s. Cargomar is liable for penalty and/or prohibition from operating under Regulation 23 of the Customs Brokers Licensing Regulations (CBLR) 2013;
• Whether the principles of natural justice were followed in the proceedings against both the importer and the customs broker, particularly regarding access to seized goods and issuance of show-cause notices and prohibition orders;
• Whether the penalty under Section 114AA is sustainable in light of penalty under Section 114A already imposed;
• Whether the demand is time-barred or vitiated by lack of mala fide intention on part of the importer.

2. ISSUE-WISE DETAILED ANALYSIS

Classification of Imported Goods and Eligibility for Exemption

The legal framework for classification is governed by the Customs Tariff Act and the relevant notifications providing exemptions. The Tribunal examined the classification under two competing headings:

• CTH 2520 2090: Covers gypsum, anhydrite, and plasters in crude or minimally processed forms, as per Chapter 25 Notes, which restrict coverage to products in crude state or subjected only to simple physical processes, excluding those subjected to further processing or manufacturing;
• CTH 6809 9000: Covers articles of plaster or compositions based on plaster, including boards, sheets, panels, tiles, and similar articles, which are finished products suitable for decorative use.

The Tribunal noted that the impugned products are described as 'Architectural Gypsum Moulding products' such as crowns, cornices, medallions, panels, pillars, and frames, which are fully manufactured decorative items made using glass fiber reinforced gypsum technology. The supplier's catalogue confirmed their use as architectural and decorative plaster moulding products that can be painted and used in new residential and commercial construction.

Precedents and the tariff notes were relied upon to distinguish between raw or semi-processed gypsum/plaster products under Chapter 25 and finished decorative articles under Chapter 68. The Tribunal emphasized that Chapter 25 does not cover products subjected to manufacturing processes beyond simple mechanical or physical treatment, while Chapter 68 includes finished articles of plaster suitable for decorative use.

Evidence of prior imports by the appellant, where similar products were classified under CTH 6809 9000, was considered significant. The Tribunal found that the appellant's reclassification of the impugned goods under CTH 2520 2090 in the present case was an attempt to avail exemption under Notification No.12/2012, which does not extend to products classifiable under Chapter 68.

The Tribunal rejected the appellant's contention that the classification under Chapter 68 was beyond the scope of the show-cause notice, noting that the original authority's reclassification and the Commissioner (Appeals)' confirmation addressed this issue squarely.

Application of Law to Facts and Findings on Mis-declaration

The Tribunal applied the legal framework to the facts, concluding that the impugned products are correctly classifiable under CTH 6809 9000 as finished articles of plaster for decorative use. The appellant's classification under CTH 2520 2090 was found to be a deliberate mis-declaration to claim exemption improperly.

The Tribunal observed that the appellant had knowledge of the correct classification, evidenced by prior imports and classification under CTH 6809 9000, and that the present misclassification was a clear case of suppression and misdeclaration with intent to evade duty.

Regarding the time-bar and mala fide intention arguments raised by the appellant, the Tribunal held that the classification mis-declaration was deliberate and not due to ignorance, thereby negating the claim that the demand was time-barred or that there was no intention to evade duty.

Penalty Imposition on Importer and Customs Broker

The Tribunal upheld the imposition of penalty under Section 114A on the importer for mis-declaration but set aside the penalty under Section 114AA, reasoning that imposing both penalties for the same cause would be duplicative.

On the issue of penalty and prohibition against the Customs Broker M/s. Cargomar, the Tribunal noted that the original authority had found no evidence of the broker abetting duty evasion or misdeclaration. The Commissioner (Appeals)' imposition of penalty and prohibition on the broker was found to be without sufficient basis and in violation of principles of natural justice, as the broker was not served with the offence report and was not given an opportunity to be heard before prohibition.

The Tribunal emphasized that the benefit of exemption accrues to the importer, not the customs broker, and without evidence of active participation or abetment by the broker, penalty and prohibition orders against the broker cannot be sustained.

Natural Justice and Procedural Fairness

The appellant importer's contention that the seized goods were not made available for inspection, violating principles of natural justice, was considered. However, the Tribunal did not find sufficient merit in this claim to overturn the classification and demand. The procedural aspects regarding the broker were more critically examined, with the Tribunal holding that the broker's right to be heard was not respected in the prohibition order, rendering it unsustainable.

3. SIGNIFICANT HOLDINGS

The Tribunal's key legal determinations include:

"The impugned products are correctly classifiable under Chapter Heading 6809 as articles of plaster and not under Chapter 25 which covers gypsum and plasters in crude or minimally processed forms."

"The appellant's classification under CTH 2520 2090 was a deliberate mis-declaration to avail exemption under Notification No.12/2012, which is not applicable to products classifiable under Chapter 68."

"The demand of differential customs duty along with interest is upheld as the misclassification amounts to suppression and misdeclaration with intent to evade duty."

"Penalty under Section 114A is justified and confirmed against the importer; however, penalty under Section 114AA is set aside to avoid duplication."

"There is no evidence on record to hold the Customs Broker liable for penalty or prohibition under Regulation 23 of CBLR 2013; imposition of penalty and prohibition order against the broker is unsustainable for want of procedural fairness and lack of evidence."

In conclusion, the Tribunal confirmed the demand of duty and penalty under Section 114A on the importer, upheld the classification under CTH 6809 9000, and set aside penalty and prohibition orders against the customs broker, thereby balancing enforcement of customs laws with adherence to principles of natural justice and evidentiary requirements.