TMI Blog2019 (2) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... re, not amenable to interchangeable denomination in common parlance. The deliberate inclusion of corrugated in flat rolled could well have encompassed the distinct and separate trapezoidal had legislative intent determined so as both were in use by the trade when the tariff was enacted. There is no evidence to support the claim that the goods are utilized exclusively in erection of structures; that may well be true but absence of material to conclude so mandates the ascertainment of fitment within the alternative classification that is sought. The goods do conform to that description and, consistent with the Explanatory Notes referred supra, we concur with that alternative classification. Amidst the confusion that is manifest in the show cause notice, and the impugned order, the non-applicability of the classification claimed in the bills of entry cannot be held to be deliberate - there is no justification for confiscation and the imposition of the penalties proposed in the show cause notice. Demand set aside - confiscation and penalties set aside - the classification of the goods confirmed under heading no. 7216 9100 of First Schedule to Customs Tariff Act, 1975 - a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtent of the difference between the landed value and US $ 849 in three of the bills of entry filed by each of the importers and, in the bills of entry pertaining to the period prior, the imported goods were valued at US $643, the minimum import price prescribed in notification no. (as amended) effect from 5th February 2016. The imported goods that were available in the possession of the appellants, having been seized during investigations, were confiscated and allowed to be redeemed on payment of fine. 3. Arguably, there are taints on the proceedings that has also been brought on record by the appellants and to which we must, doubtlessly, allude. Following the issue of show cause notice proposing re-classification with attendant detriment and penalty, and after receipt of the response to the notices, the issuing authority compromised its competence with a corrigendum proposing an alternative classification that was adopted in the impugned order and enhancement of value. Not only is this attempt to fill perceived gaps by afterthought deplorable but is also sufficiently demonstrative of initiation of proceedings without proper application of mind. Furthermore, the inability to st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory instrument. The sole exception to this statutory prescription of ascertainment of value will apply if, in exercise of powers, the Central Government were to promulgate tariff value under section 14 (2) of Customs Act, 1962. Here, we find no pretence that such tariff value has been prescribed. The enhancement of value to minimum import price , the provenance of which is not cited, whether deliberately or by oversight, for determination of differential duty in the impugned order is appears to be an opportunistic recourse without respect for the law conferring the authority to assess duties of customs. 6. The indexing of notification no. 38/2015-20 dated 5th February 2016, as amended in October and December of the same year, that has been invoked in lieu of ascertainment of value under the prescribed Rules suffices to outline its purpose and limits. That instrument was issued under section 3 of Foreign Trade (Development Regulation) Act, 1992, read with Foreign Trade Policy 2015-2020, by the Director General of Foreign Trade. Prescription of minimum import price is intended to ensure that only goods conforming to acceptable threshold of quality are brought into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in chapter 72 of First Schedule to Customs Tariff Act, 1975, cannot be said to include trapezoidal profile. According to Learned Counsel, the literature available on the subject makes it abundantly clear that corrugated profile has been available for more than a century while trapezoidal profile is of recent deployment in the construction of structures. He contends that the corrugation of flat sheets involves a second rolling unlike cold-forming and pressing by which trapezoidal sheets are manufactured. He claims that the consumption targets are also entirely different and that trapezoidal sheets are used only for roofing. He also submits that the sinusoidal curve that characterises, and defines, corrugation is not consistent with the shape of the trapezoidal. 10. On the other hand, Learned Authorized Representative contends that the appellants had sought the residuary sub-heading of a general heading in the bills of entry were residuary nature and that conformity with the more specific heading in the impugned order is the prescriptive mandate of the General Interpretative Rules for justification of which, he places reliance on the decision of the Hon ble Supreme Court in Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Customs Tariff Act, 1975; the product is presented in a regular shape and has been manufactured from flat rolled sheets that have been so cut to a predetermined length before being subjected to trapezoidal forming. There is no evidence to support the claim that the goods are utilized exclusively in erection of structures; that may well be true but absence of material to conclude so mandates the ascertainment of fitment within the alternative classification that is sought. The goods do conform to that description and, consistent with the Explanatory Notes referred supra, we concur with that alternative classification. 14. Amidst the confusion that is manifest in the show cause notice, and the impugned order, the non-applicability of the classification claimed in the bills of entry cannot be held to be deliberate. There is, therefore, insufficient justification for confiscation and the imposition of the penalties proposed in the show cause notice. 15. For these reasons, we set aside the demands, the confiscation and the penalties in the impugned order while confirming the classification of the goods to be under heading no. 7216 9100 of First Schedule to Customs Tarif ..... 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