TMI Blog2016 (2) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... sification. As such, there is a lapse on the part of the applicant to this extent and therefore the provisions of Section 111(m) and consequently Section 112(a) of the Customs Act are attracted. Short payment of interest and duty - Held that: - the Bench holds that the applicant is liable to pay the duty demanded in the SCN along with the applicable interest. The Bench also observes that the applicant has co-operated in its proceedings - In terms of sub-section (8) of Section 127C this order of settlement shall be void if the Bench finds, at any time, that the subject settlement has been obtained by the applicant by fraud or misrepresentation of fact. Appeal disposed off. - Settlement Application No. 1070/2015 in File No. C-508/CUS/2015-SC(KB) - Final Order No. F-471/CUS/2016-SC(KB) - Dated:- 15-2-2016 - Shri Karan K. Sharma, Vice-Chairman and B.B. Prasad, Member Shri Arvind Baheti, Advocate, Khaitan Co. LLP., for the Assessee. Shri Yatish Ramavtar Pabri for the Respondent. ORDER This order disposes of the Settlement Application No. 1070/2015 filed by M/s. Amrit Feeds Ltd. 158, Lenin Sarani, 3rd Floor, Kolkata - 700013, IEC No. - 0297022466 (hereinaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 5160402, dated 10-4-2014 Machinery for preparing animal feeding stuff Kolkata 84361000 84361000 6 7279647, dated 3-7-2012 Equipment for feed plant - Supply of Silos and accessories (m/c for preparing animal feeding stuff) Chennai 84361000 84361000 2.3 It is further alleged that the machinery imported was not Poultry Keeping Machinery of Chapter Heading 8436 or other machineries as declared. They appeared to be machineries of Chapter Heading 8479 (for Bills of Entry at Sl. Nos. 01 to 04 of the Table above) and 9406 (for Bills of Entry at Sl. Nos. 05 and 06 of the Table above). Chapter Heading 8436 does not attract CVD, whereas Chapter Headings 8479 and 9406 attract CVD @ 10% and 12% respectively. Also Cenvat Credit of CVD was not available because the final product falling under Chapter 2309 of Central Excise Tariff was not subject to central excise duty. Thus, the misdeclaration and misclassification were resorted to evade Customs duty. 3. On completion of investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively and the interest on the admitted duty liability of Rs. 3,14,40,182 (Rs. 2,85,45,240 at Kolkata + Rs. 28,94,942 at Chennai) comes to Rs. 32,13,769 (Rs. 20,65,935 at Kolkata + Rs. 11,47,824 at Chennai) making their total liability as Rs. 3,46,53,941. Thus, there is an excess payment of Rs. 1,28,308/-. 5. While admitting the additional liability towards duty in excess of Rs. 3 lac, the applicant prayed for allowing the case to be proceeded with and settled granting immunities from penalty and prosecution since they- (i) Fulfilled all the conditions required for settlement of a case, (ii) Have made full and true disclosure of the differential Customs duty liability, (iii) Did not suppress any fact with intention to evade, (iv) Co-operated with the authorities, and (v) Have undertaken to co-operate with the Commission. 6.1 Notice under Section 127C(1) of the Act was issued on 28-5-2014 in reply to which the applicants submitted that :- As per Section 127B of Customs Act, 1962, an importer, exporter or any other person can approach the Settlement Commission, including cases in which he admits short levy on account of misclassification. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Jurisdictional Commissioners i.e. CC (Kolkata Port) inter alia submitted that though the applicant claimed to have deposited Rs. 2,85,45,240 Rs. 20,65,935 respectively towards their duty and interest liability, actually they have deposited Rs. 2,83,87,960 Rs. 22,23,215 towards the same; that in the first four(4) B/E, the interest has been calculated up to 15-11-2014 whereas it is payable up to 26-11-2014, resulting in a short payment of Rs. 79,975; that in the fifth B/E the applicant has made short payment of Rs. 1,57,280; that in the same B/E an excess payment of Rs. 62,617 towards interest liability has been made, which after adjusting to the above short payment of interest comes to Rs. 17,358, which is to be paid by the applicant in addition to the payment of Rs. 1,57,280 towards their duty liability. 8.2 Report of the CC, Chennai-V has been received on 31-12-2015. 8.3 Both the Commissioners have endorsed the report of the DRI. 9.1 The hearing in this case was held on 19-1-2016. During hearing, Shri Arvind Baheti, Advocate, appearing on behalf of the applicant, M/s. Amrit Feeds Ltd., admitted the entire duty liability but stated that the incorrect clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification was not because of any mala fide intention and that it was a bona fide error. The applicant s contention is that they have correctly described the goods and only because of intended use of the goods, the classification got changed from T.I. 8436 to T.I. 8479. As regards the goods imported through Chennai Port, the applicant s contention is that they have correctly described the goods in the Bills of Entry, but wrong classification was claimed. 10.4 The Bench finds that as regards the two consignments (Sl. Nos. 1 2 in the table in paragraph 2.2 above) imported through Kolkata Port, the goods were declared as Poultry Keeping Machinery and in the two Bills of Entry (Sl. Nos. 3 4), they were declared as Animal Feed Production Equipment with standard accessories. In the fifth B/entry at Sl. No. 5 of the table, the goods were declared/described as machinery for preparing animal feeding stuff . Revenue s allegation is that in all the five Bills of Entry, the goods are actually poultry/fish/shrimp feed making machinery. The Bench observes that both Poultry Keeping Machinery and Poultry Feed Making Machinery are classifiable under CTH 8436/CETH 8436 but both get classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has co-operated in its proceedings. The Bench settles this case with the following orders. ORDER Customs Duty - Customs Duty is settled at Rs. 3,15,97,462/- (Rupees three crores fifteen lakhs ninety-seven thousand four hundred and sixty - two only). This amount should be appropriated from the amounts already paid by the applicant within thirty days of receipt of this order. Interest - Interest is settled at Rs. 32,31,127/- (Rupees thirty-two lakhs thirty-one thousand one hundred and twenty-seven only). This amount should be appropriated from the amounts already deposited by the applicant within thirty days of receipt of this order. Penalty - A penalty of Rs. 2,00,000/- (Rupees two lakhs) only is imposed on the applicant. Immunity from penalty in excess of Rs. 2,00,000/- is granted. Prosecution - Subject to payment of the above settled dues, full immunity from prosecution is granted to the applicant under the Customs Act, 1962 in so far as this case is concerned. 12. The above immunities from penalty and prosecution to the applicant are granted under sub-section (1) of Section 127H of the Act subject to the provisions contained in sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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