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TMI Blog2014 (12) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... y and parts. At the time of clearance of the said two consignments the applicant produced documents titled as "Specification of Production Equipment (SPE) sheet" and "invoices". In the SPE classification of the product was indicated as 8434 2000. The invoices indicated the description as "dairy machinery and parts" as per attached sheets which also indicated the HS code for the said goods as 8434 2000 and for parts dairy machinery as 8434 9020, and in the description column "dairy machinery - dissolving tank" etc. In addition to the said two documents purported to be from the supplier, the applicant produced a certificate from a Chartered Engineer Shri R.K. Khera, who visited the plant on 08.05.2007 and gave as assessment about the position relating to installation and various machinery. By this time the goods covered by the two disputed bills of entry had not been cleared by the customs and therefore were not available in the factory. The documents inspected by the Chartered Engineer were as under:- a) Permission from Centre and the state government for the kind of plant to be set up b) Allotment of land in food part being developed by Harya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubation and dilution etc., which are excluded from the heading 8434. Investigations started and search at the premises of the M/s. BSK Brothers, CHA led to recovery of some incriminating documents, which included the correct SPE sheet which was received by the appellant from the supplier. These SPE sheets indicate the classification of each item of import, which was very different than that indicated in the SPE sheets produced before the customs at the time of clearance. Further investigation revealed that main applicant got the soft copy of the SPE sheets from the suppliers, and thereafter applicant no. 2 asked Shri Anil Choudhary, applicant no 3 to manipulate and make new SPE sheets where in the HSN code would be shown as 8434 2000. The printouts of such manipulated information were produced before the customs and were the basis for assessment and clearance of the goods. It also came out in the investigation at the instance of the appellant no. 2, the invoice were got reissued from the supplier indicating the heading 8434 2000 and also the attached sheets were manipulated to indicate the said heading instead of actual correct heading . Based upon the investigation, the demand not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- "It should be noted that the heading excluded many machines and apparatus used in the dairy industry. For example, storage, maturing, processing, etc. vats and tanks whose operation depends primarily on fitted heating or cooling equipment fall in heading 84.18 or 84.19, whether or not they also incorporate mechanical equipment such as agitators, vats etc., not fitted with heating or cooling equipment, but incorporating mechanical features such as stirrers, agitators, tipping mechanism, etc. are classified in this heading provided they are identifiable as specialised for diary use. If they are not identifiable as for any one particular use, they are classified in heading 84.79. Vats, etc. not fitted with either thermal or mechanical equipment are classified as articles of the constituent material (e.g. heading 73.09,73.10, 74.19, 7.11 or 76.12)." 7. The other contention of the ld. advocate that the goods were cleared by the customs after examination of the goods as also examination of the documents and no review of the said assessment order has been filed and therefore, it is not permitted to reopen the issue at thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs would have taken the decision thereafter then applicants could have said that there is no suppression of facts etc. The very fact that the SPE sheets were manipulated and the manipulated SPE sheets were produced to the customs indicate the fraudulent intention of the applicant . Similarly, in the invoices instead of describing each item and indicating the classification of the said item they have procured invoices which indicated general description as dairy machinery and parts thereof and heading 8434 2000. Even if the attached sheet, the HS code is manipulated so as to indicate as 8434 2000. There are no reason for the applicant to manipulate the documents and produce manipulated documents. Ld. AR further argued that in case of machinery it is very difficult for any person including customs officials to identify the machines and they generally go based upon the documents produced. In the present case the customs officials have been mislead by the applicants. Ld. AR also stated that the investigation shows that the applicants have intentionally evaded the duty. This they have also projected before their Board meeting that they have saved the customs duty. As far as the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manipulated. Under the circumstances, prima facie we do not find any force in the appellant's contention that there has been no suppression of facts or fraudulent action on their part to evade the payment of duty. Appellant's contention that the assessments were not reviewed. We note that the assessment were made based upon the manipulated documents and misleading information provided by the applicants and as has been held by the Hon'ble Supreme Court in the case of Jain Shuddh Vanaspati and R.K. Impex as detailed in the impugned order, prima facie, we do not find any merit in the argument of the appellant. We also do not find any merit in the argument of the appellant relating to Section note 4 of Section XVI as the said note is relating to a machine and not to a plant. The explanatory notes to the heading 8434 prima facie goes against the appellant. 11. In view of the above position, prima facie we are of the view that the applicants have not made out a case for waiver of duty interest and penalties. During the hearing, advocate for the applicant has indicated that the unit is running into loss, though no documents in support of the same were produced. However, keep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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