TMI Blog2015 (11) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... 316(Gr.V)/2014(JNCH)/IMP-297 dt. 10.2.2014 whereby the Ld. Commissioner (Appeals) was pleased to set aside the redemption fine and penalty. 2. The Brief facts are the respondent-assessee company is engaged in the business of manufacture and processing of Milk and Milk Products vide purchase contract. They have entered into with Thimonnier, France for import of Automatic Aseptic Machine for UHT Liquid Milk and Liquid Milk Products in Pillow Pouches. On arrival of the machine the respondent-assessee filed Bill of Entry on 21.5.2013 wherein claiming CVD benefit @0% under Sr. No.245 of the Notification No. 12/2012-CE. The goods were examined by the Docks Officials on 23.5.2013 along with SIIB (Imports) and asked to furnish catalogue and explain the goods. The importer had classified the goods under CTH 84341000. The respondent-assessee already clarified that it was bona fide mistake and they were ready to pay the differential duty vide their letter dt. 23.5.2013 addressed to the Assistant Commissioner of Customs, that there appears to be mistake in their claim of concessional duty and accordingly requested that no show cause notice be issued and the goods to be assessed on First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned goods under Chapter heading 84341000 and claiming CVD benefit @0% under Sr. No. 245 of the Notification No. 12/2002-CE. It is on record that the importer, vide letter dated 23.05.2013, had admitted their typographic error, showing willingness to pay differential duty. Further, vide another letter dated 24.05.2013, the importer had requested for First Check assessment. The proper officer i.e. assessing authority at this point of time was very much authorized to re-assess the impugned goods by classifying the same in the appropriate CTH and levying merit duty. I find that the seizure memo was issued by SIIB (Imports) only on 28.05.2013 and the goods examined 100% undertaken thereafter. Further, I also find in the case of C. Natvarlal Co. Vs. CC (Import) Mumbai, under appeal No.C/1029/12-MUM, order no. A/05/13/CST dated 20.12.2012 given by Honble CESTAT, Mumbai that the importer had imported goods described as Non-Sterile Surgical Linen Suture Reels (Barbour) and claimed the CTH 90189099 with the benefit of concessional rate of duty under Notification No. 21/2012-Cus dated 17.03.2012 however, department found the goods to be mis-declared and the same merit classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation claimed, if any, in respect of the imported/export goods while presenting Bill of Entry or shipping bill. Further ground is that the respondent-assessee have failed to take steps under new facility given by the Revenue like- (i) Seek assistance from Help Desk located in each Customs Houses, (ii) Refer to information on CBEC/ICEGATE web portal (iii) Apply in writing to the Assistant/Deputy Commissioner in charge of Appraising Group to allow provisional assessment (iv) An importer may seek Advance Ruling from the Authority on Advance Ruling, New Delhi if qualifying conditions are satisfied. The Ld. AR. further relying on the ruling of Apex Court in the case of HMT Ltd. Vs. Commissioner of C.Ex. Cus. Aurangabad 2007 (214) E.L.T. 10 (S.C.) wherein para 14 of the judgment the Honble Apex Court have observed as under: Even on a bare perusal of the Note No.2 to Chapter Heading 84.34 and HSN Explanatory Notes show that the view of the CESTAT is on terra firma. In Commissioner of Central Excise Vs. Carrier Aircraft (2006 (6) SCALE 564) it was held that the view of the Tribunal in classification matters unless patently wrong should not be interfered with. Above bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipping bill, as the case may be. (6) Where re-assessment has not been done or a speaking order has not been passed on re- assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed 4.1. The Ld. Counsel further states that law provides for certain assessment in certain manner, it should have been in that manner and more so in facts of the present case, when all the facts etc. were available on record and the importer was co-operating with the Revenue by opting First Check basis. The assessment should have been completed under Section 17(4) or under Section 17(5). In this view of the matter passing of the Order-in-Original was incorrect exercise of power under the scheme of the Act. He further states that the order of the Commissioner (Appeals) does not require any interference. The Commissioner (Appeals) has rightly held that there is no mala fide claim made by the importer and accordingly was pleased to set aside the redemption fine and penalty. The respondent further relies on the ruling in the case of S.Rajiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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