TMI Blog2018 (1) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... d such submission as untenable - it is strange that the appellants are pressing the adjudicating authority to re-determine the value only as a consequence of the fact revealed during investigation as the imported goods being old and used - the whole assertion of the appellant, in this regard, is a consequential after-thought to limit the damage which occurred due to deliberate mis-declaration on their part. Correct classification - availability of exemption under N/N. 12/2012 CE dated 17.03.2012 (S.No.245) for CV duty - Held that: - after due consideration of the HSN explanatory notes, actual nature of the imported goods and applying the General Interpretation Rules, the original authority has rightly came to the conclusion that the classification of goods declared under heading 8434 is not correct and these were to be classified under various different headings like 8421, 8413, 8419,8418. On careful consideration of the finding, we have no reason to interfere with the same. There is no merit in the claim of the appellant regarding non-adherence of statutory provisions by the original authority before admitting evidences and report of examination. There is no basis for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have mis-classified the goods imported in order to avail ineligible exemption from payment to additional duty of customs (CVD) in terms of S.No.245 of Notification No.12/2012 CE dated 17.03.2012. The second main allegation is that the goods imported were actually second-hand/old and used machinery and, as such, were not eligible for zero duty EPCG scheme exemption under Notification Nos.22/2013 CUS dated 18.04.2013 and 16/2015-CUS dated 01.04.2015. The imports were in violation of para 5.1 (e) of Foreign Trade Policy 2009-14 and para 5.10 (f) of Foreign Trade Policy of 2015-19 under which the used capital goods are not permitted to be imported under EPCG scheme. 5. The appellants contested the allegations in the SCN and sought cross-examination of the connected persons in the investigation. The cross-examination was conducted. The defense submissions were considered. The original authority issued the impugned order holding that the seized goods were liable for confiscation and allowed to be redeemed on payment of various redemption fines under Section 125 of the Act. He confirmed differential customs duty as demanded in the SCN totalling ₹ 21,32,59,947/-. He also impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re used in the factory of production in terms of the conditions mentioned therein. i) The adjudicating authority failed to strictly adhere to the provisions of Section 138B of the Act before admitting the various evidence for arriving at his finding. 7. The ld AR strongly contested the appeals. He submitted that the appellants imported used machines which are not at all eligible for concession under EPCG scheme. This is an admitted fact. This cannot be disputed. The appellants are raising frivolous and irrelevant objections with reference to the admissibility of inspection report by the chartered engineer. In fact, by praying for determination of value applicable to used machines, the appellants manifestly admitted that the goods imported were, in fact, used and are not new. The ld AR submitted that the impugned order has strictly adhered to the principles of natural justice by offering adequate opportunities to the appellants to present their written and oral submissions. Cross-examination of the witnesses, wherever required, have also been permitted and were conducted. The classification of goods were deliberately made wrongly in order to avail ineligible CV duty exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le assertion of the appellant, in this regard, is a consequential after-thought to limit the damage which occurred due to deliberate mis-declaration on their part. 9. Another important aspect which was decided by the original authority is the correct classification and consequently availability of exemption under Notification No.12/2012 CE dated 17.03.2012 (S.No.245) for CV duty. In this connection, we note that the original authority relied on Rule 3(a) of the General Rules of Interpretation of Tariff. He gave preference to more specific description over general description to arrive at correct classification. He has listed-out 10 such items in the table below para 5.4.4.1.2 of the impugned order. Relying on the decision of the Hon ble Supreme Court in M/s Pioneer Embroideries-2015 (332) ELT 602 SC, the original authority proceeded to classify the goods in the form and state they were presented at the time of import. Relying on various other decisions of the Apex Court, he concluded that the classification declared by the appellant to the DGFT does not by itself entitle them to a customs classification for assessment under the same heading. We note that after due considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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