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Commissioner of Customs (Imports) , Chennai Versus Alpharma (Belgium) BVBA

2016 (1) TMI 906 - CESTAT CHENNAI

Claim of exemption from CVD - Import of Chlortetracycline 15% (Medicaments) - Animal Feed Supplements - Classification - Notification No.3/2005-c.Ex (Sl.No.29) dt. 24.2.2005. - Revenue's appeal is limited to confiscation and imposition of fine and penalty which was set aside by the Commissioner (Appeals) - Held that:- On perusal of OIO, we find that in spite of several opportunities were given to the respondent to appear for personal hearing, the respondent to appear for hearing to defend their .....

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R> Nowhere in the invoice the goods were described as “Medicaments” but they have added and inserted the words “medicaments” while describing the description of the goods in the B/E and claimed classification under Chapter 30 to evade payment of appropriate duty of customs. It is evident that respondents claimed classification of goods as “medicament” under Chapter 30 with intention to avail exemption of CVD at NIL rate under Central Excise notification No.3/2005-C.Ex Sl.No.29). Therefore, inte .....

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nsultant And Ms. Rashmi Deshpande, Advocate ORDER Per R. Periasami Revenue filed appeal against the OIA dt. 11.3.2014 passed by Commissioner of Customs (Appeals) Chennai. 2. The brief facts of the case are that M/s.Alpharma (Belgium) BVBA, New Delhi imported the goods under Bill of Entry No.749676 dt. 14.1.2011 declaring the goods as Chlortetracycline 15% (Medicaments) - Animal Feed Supplements classifying under Chapter Heading 30042041 and claiming the benefit of CVD under Exemption Notificati .....

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as Medicaments . Consequently, a SCN was issued for reclassification of the goods and also for confiscation of the goods under section 111 (m) and also proposing for penalty. Since the respondents did not appear before the adjudicating authority, the adjudicating authority in his OIO dt. 31.3.2012 rejected the classification of the goods claimed by the respondents under 30042041 and ordered for reclassification under 23099090 of the Customs Tariff Act, 1975 as Animal Feed Supplement and also ord .....

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owards adjudication liabilities and also ordered for enforcement of bank guarantee. Against this order, respondent preferred appeal before Commissioner (Appeals) and the Commissioner (Appeals) in the impugned order dt. 11.3.2014 partly allowed the appeal. He upheld the reclassification ordered by the adjudicating authority and set aside the confiscation and penalty. Hence Revenue filed the present appeal against the OIA of setting aside of confiscation and penalty. The respondents have also file .....

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des re-classifying the goods. He submits that Commissioner (Appeals) having upheld re-classification and misdeclaration but setting aside the confiscation, fine and penalty is not justified. Respondents have intentionally misdeclared the goods as Medicaments under Chapter 30 and availed exemption notification 3/2005 for CVD and the misclassification is with intention to evade customs duty. Therefore, he submits, the adjudicating authority has rightly confiscated the goods and imposed RF & pe .....

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submits that the product "ChlorMax" is described as per their website w.w.w.alpharma.com to be "a broad spectrum antibacterial feed additive and submits that Heading 2309 includes products of a kind used for animal feeding not elsewhere specified or included. Since their product containing "Chlortetracycline of 15%" is rightly classifiable under Chapter 30. He relied Chapter Note (1) of Chapter 23 and also relied HSN note (3) note (c) and note (g) and submits that as p .....

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herefore, Commissioner (Appeals) has rightly set aside fine and penalty. 5. After hearing both sides, we find that the short issue to be decided in this Revenues appeal is limited to confiscation and imposition of fine and penalty which was set aside by the Commissioner (Appeals). Reading the respondents raising the dispute of classification of goods in their cross objection, we find that respondents themselves in their appeal before Commissioner (Appeals) have accepted the reclassification of .....

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we do not find any merit in the respondents contention on classification of imported goods in their cross objection. We also find that the adjudicating authority and the appellate authority have discussed the classification issue at length and rightly held that the goods are Animal Feed Supplement and classifiable under Chapter 23 of CTA. Therefore, the cross objection on their issue is liable to be rejected. 6. As regards the Revenue s contention that the respondent has misclassified/misdeclar .....

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on under Chapter 30 to evade payment of appropriate duty of customs. It is evident that respondents claimed classification of goods as medicament under Chapter 30 with intention to avail exemption of CVD at NIL rate under Central Excise notification No.3/2005-C.Ex Sl.No.29). Therefore, intention of the respondent is established the contravention under Section 111 for confiscation is fully justified. The lower appellate authority having accepted the Revenue s re-classification of the goods under .....

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