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TMI Blog2010 (6) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were classified by the importer under CTH 6001.92. The consignment consisting of 4716.37 metres of fabric valued at Rs. 2,00,584/- was assessed to duty on the basis of the importer's declaration and, upon payment of such duty by the assessee, out-of-charge was allowed by the assessing authority under Section 47 of the Customs Act. The goods were accordingly cleared for home consumption. Subsequently, however, the SIIB doubted the veracity of the importer's declarations. They were of the view that the goods were actually woven fabric of weft pile classifiable under CTH 5801.33 as 'synthetic woven weft pile fabrics'. Samples were drawn and got tested at the department's chemical laboratory. The test report confirmed that the goods imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )/Section 114A of the Act on the assessee and penalties on the other noticees under Section 112 of the Act. The demand of duty and other proposals were contested. The Additional Commissioner of Customs, in adjudication of the dispute , passed an order : (a) confiscating the goods with option for redemption thereof on payment of a fine of Rs. 1 lakh; (b) classifying the goods under CTH 5801.33; (c) enhancing the assessable value and demanding differential duty from the assessee; (d) imposing a penalty of Rs. 8.86 lakhs on the assessee under Section 114A read with Section 112(a) of the Act; and (e) imposing penalties on othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the view taken by the lower appellate authority that only the Assistant/Dy. Commissioner of Customs, who passed out-of-charge order under Section 47 of the Customs Act in this case, was competent to pass any further order in relation to the subject import and the Additional Commissioner of Customs could not have adjudicated the case, is erroneous. Thirdly, it is contended that the learned Commissioner (Appeals) erred in holding that there was no question of any misdeclaration by the importer as classification of goods was a point of law. Lastly, it is the contention of the Revenue that the view taken by the learned Commissioner (Appeals) on the evidentiary value of confessional statements of the assessee under Section 108 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy possessed of an out-of-charge order issued under Section 47 of the Customs Act by the assessing authority. The learned Commissioner (Appeals) thought that any such demand of duty could be raised only by recourse to the remedy available under Section 129D of the Act. The decision of the Hon'ble Supreme Court in Jain Shudh Vanaspati (supra) should dispel the apprehensions of the learned Commissioner (Appeals). We are not impressed with the way the learned counsel has sought to distinguish Jain Shudh Vanaspati case. He has submitted that, in that case, the importer had fraudulently camouflaged the stainless steel containers of the imported oil by painting them so as to make the containers look like mild steel containers. The learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130." 6. The ruling which emerges from the above judgment of the apex court is that, even subsequent to clearance of goods under Section 47 of the Customs Act, a show-cause notice could be issued under Section 28(1) within the prescribed period of time reckoned from the relevant date for the purpose of recovery of customs duty not levied, short-levied, not paid, short paid etc. Contextually, we may also mention that the apex court set aside the Delhi High Court's judgment and even passed strictures against the High Court in the case of Jain Shudh Vanaspati case. It was the very same judgment of the Delhi High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of duty along with fine and penalty. The statements were never retracted. Nothing contained in the statements given under Section 108 of the Act by their CHA or the CHA's employee was, in any way, in conflict with the fact admitted by the importer. The classification proposed by the department was also readily accepted by the importer. Having accepted the classification and the enhancement of value proposed by the Revenue, the importer can hardly withdraw from the consistent position taken by him. No corroboration whatsoever is required. The contra view taken by the learned Commissioner (Appeals) cannot be accepted. It also appears from the impugned order that the learned Commissioner (Appeals) did not appreciate the adjudication of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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