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TMI Blog2014 (12) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is entitled to benefit under Notification No.103/2009-Cus. despite restriction imposed under FTP is sustainable in law? (ii) Whether the CESTAT is right in law in setting aside the duty charged, confiscation of the goods under section 111(d), redemption fine of Rs. 20,00,000/- under section 125 in lieu of the confiscation, and penalty of Rs. 10,00,000/- under section 112(a)? 2. With the consent of the learned advocates, we have taken up the Appeal itself for final disposal. 3. Very few facts are needed for the purpose of the ultimate direction that we are inclined to issue in this Appeal. 4. The Respondent imported three consignments of goods declared as Processed Natural Limestone and sought clearance under the EPCG scheme vide thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIF value is below US$ 50 per square meter. While discussing the issue regarding classifications, we have agreed with the contention of the importers (relying upon the explanatory notes of HSN) that the imported goods were covered by HSN 6802 2200, the equivalent of which in Indian Customs Tariff was 6802 2900. Intention of the Govt.,is very clear that 'other calcareous stone' falling in ITC (HS) classification 6802 2200 (equivalent to ICT classification 6802 2900 ) are restricted for imports if the CIF value was less than US$ 50 per square meter. The importers have declared the value of their goods to be less than US$ 50 per square meter and have insisted it to be the true transactions value. This being the case the goods are obv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not entitled to the benefit of exemption from duty under EPGC Scheme against the Authorization presented. 2.16 As regards challenge to the loading of value, I find that the Dept.has at no stage adduced any evidence to show that the declared value was lower than the actual transaction value or the value of the contemporaneous import of identical goods. The importer is in fact being penalized because the CIF value is less than the threshold of US$ 50. Under these circumstances the action of the Dept.in loading the value is indefensible." 6. Aggrieved by this order, the Appeal was filed by the Respondent before the Customs Excise and Service Tax Appellate Tribunal. This Appeal is allowed by the impugned order. The Revenue is, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould submit that the Tribunal has in its short order upheld the contentions of the Respondent that the Commissioner classified the goods under Customs Tariff Heading 68022900 and the ITC Note has been aligned with Customs Tariff Heading in 2005. As per ITC notes, the item is classifiable under 68022900 as other stone. Further, the submission of the Revenue that the classification under Customs Tariff Heading 68022200 has been withdrawn by Notification No.94 of 2009 dated 02.03.2009, therefore, holding that the goods are classifiable under Customs Tariff Heading 68022200 is not sustainable as the entry was not in existence at the time of importation. 9. Mr. Patel, therefore, would submit that this Appeal does not raise any substantial quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading No.68022900 under which the goods are classifiable, then, whether there is any restriction in terms of the applicable policies or not ought to have been examined. Whether, the Commissioner was right in making a reference to the Customs Tariff Heading 68022200 should have been then considered. If that was permissible, the Tribunal was obliged to not only make a reference to the relevant findings of the Commissioner to uphold them in their entirety or otherwise. If these findings were not tenable as urged on behalf of the Respondent/original Appellant, then, the Tribunal should have held accordingly. We do not find any discussion much less a conclusive finding on this aspect of the matter. Resultantly, we are constrained to quash and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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