TMI Blog2019 (10) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... fication it is evident that the said exemption is available only in respect of the goods classifiable under tariff heading 392490 and not under heading 392410. Hence the order of Commissioner denying the benefit of exemption under this notification cannot be faulted with. Extended period of limitation - HELD THAT:- By giving the correct description on the documents relating to import clearance appellants have discharge the burden of making correct declaration on the Bill of Entry. Hence any error in classification or the exemption claimed on Bill of Entry cannot be misdeclaration with the intention to evade payment of duty for the purpose of invoking extended period of limitation. Hence demand made by invoking extended period of limitation needs to be set aside. Since we have upheld that the benefit of exemption under Notification No 46/2011-Cus was not admissible to the appellant and demand could not have been made by invoking the extended period of limitation as provided for by Section 28(4), the demand which falls within the normal period of limitation needs to be upheld - Only after determining the duty demandable and recoverable within the normal period of limitation, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakhs only paid by the importer during investigation vide cash challan No HC 904 dated 30.03.2016 against the liabilities of duty and interest. (e) I hold that the goods imported under the Bill of Entries mentioned in table above are liable for confiscation under Section 111(M) and Section111 (o) of the Customs Act, 1962, however the goods are not available for actual confiscation. (f) I impose a Penalty of ₹ 82,58,594/- (Rupees Eighty Two Lakhs Fifty Eight Thousand Five Hundred and Ninety Four Only) on M/s Srithai Superware India Pvt Ltd under Section 114A of the Customs Act, 1962. (g) I impose a Penalty of ₹ 1,00,000/- (Rupees One Lakh Only) on M/s Srithai Superware India Pvt Ltd under Section 112(a) of the Customs Act, 1962. (h) I impose a Penalty of ₹ 1,00,000/- (Rupees One Lakh Only) on M/s Kwick Cargo Tracers and Lifters under Section 112(a) of the Customs Act, 1962. 2.1 Appellant had imported certain goods and for clearance of the same had filed 69 Bill of Entries during the period 7.09.2012 to 17.06.2015. They had imported Melamine ware viz Kitchenware and Tableware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is settled law that if the goods can be classified under two headings then the assessee could have chosen the heading which was more beneficial to them [Minwool Rock Fibres Ltd {2012 (278) ELT 581 (SC)]; They have not made any mis-declaration in respect of description, quantity and value, even if the classification as made by them or exemption claimed by them is found erroneous then the same is on account bonafide belief or error and hence cannot be made the ground for invoking extended period as provided for under Section 28 of the Customs Act, 1962, or for demanding interest under section 28AA ibid; Hon ble Supreme Court has univocally laid down the law in this respect in case of Northern Plastic [1998 (101) ELT 549 9SC)], Jaiprakash Industries Ltd [2002 (146) ELT 481 (SC)] stating that such bonafide mistakes cannot be mis declaration with the intention to evade payment of duty; Since the charge of mis-declaration cannot be sustained invoking extended period as provided by Section 28(4) of Customs Act is not justified and also the penalty under Section 114A ibid; Also in absence of any misdeclaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed tariff entries are reproduced below 3924 Tableware, Kitchenware, Other Household Articles And Hygienic Or Toilet Articles, Of Plastics 392410 - Tableware and Kitchenware 39241010 --- Insulated ware 39241090 --- Other 392490 - Other 39249010 --- Toilet ware 39249020 --- Insulated ware 39249090 --- Other 4.2.2 From the scheme of the tariff entries it is quite evident that Tableware and Kitchenware, have been specifically mentioned and cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omposition of goods, is also specific heading like a heading based on commercial nomenclature. Therefore, we are of the view that the goods in issue are appropriately classifiable under Subheading No. 6807.10 of the tariff entry. We do not find the said judgement of Supreme Court to be applicable to the present the case when the two entries have completely separate description and scope. Commissioner has in para 30-33 of his order recorded as follows: 30. From the perusal of case documents, I find that the description of the goods mentioned by the importer in the invoices / Bills of Entry is MELAMINEWARES . Some of the descriptions are reproduced as below: (MELAMINEWARES: EXTRA BRAND) 3 PCS PICKLE SET (MELAMINEWARES: EXTRA BRAND) BUTTER DISH (MELAMINEWARES: EXTRA BRAND) 4 PCS SHORT TUMBLER (MELAMINEWARES: EXTRA BRAND) 2 PCS SPOON (MELAMINEWARES: EXTRA BRAND) CASSEROLE BOWL Etcetera 31. In his statement dated 28.10.2015, Shri Anil Garg, the Manager (Accounts) of the importer has stated that (i) the importer is engaged in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No. 153/2009-Customs dated the 31st December, 2009 [G.S.R. 944 (E), dated the 31st December, 2009], except as respects things done or omitted to be done before such supersession, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods of the description as specified in column (3) of the Table appended hereto and falling under the Chapter, Heading, Sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as specified in the corresponding entry in column (2) of the said Table, from so much of the duty of customs leviable thereon as is in excess of the amount calculated at the rate specified in,- column (4) of the said Table, when imported into the Republic of India from a country listed in APPENDIX I; or column (5) of the said Table, when imported into the Republic of India from a country listed in APPENDIX II . S No Chapter Heading, Subheading and Tariff item Description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector and Manager (Accounts) of the Importer has accepted, without any demur, that the classification of goods were wrongly mentioned in the Bills of Entry. If this suppression is read with the fact that the same importer was declaring the same goods under CTH 3924 10 earlier, and only after the introduction of benefit under Notification No. 46/2011 they started classifying their goods under CTH 3924 90, it becomes abundantly clear that the suppression was willful and with an intention to evade customs duty. 41.1 In their submissions before the Adjudicating Authority, Shri N.D. George, Advocate representing M/s Srithai Superware India Ltd argued that the classification of the goods are mentioned in the invoices and Certificate of Origin provided by the overseas supplier, as per their knowledge and belief as per identical and similar goods supplied to their buyers allover the worlds which is declared in the Bill of Entry by the CHA. 41.2 Here it is necessary to highlight the fact that the overseas supplier and the importer are related to each other and the importer is a holding company of the overseas supplier. Therefore, it cannot be assumed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassified the goods to cover them under this exemption notification. Otherwise, I do not find any valid reason put forth by the importer in support of their change in previously established classification. The instant case is clearly distinguished from a case where an importer has a genuine belief that the imported goods are classifiable under a particular tariff heading and the department continues to accept the same classification which though on a later date is found incorrect. Therefore, the judgement in the case of Northern Plastic Ltd. v. CC does not come to rescue the importer. 42. Thus, I find that by their act of willful suppression of the correct classification of the goods with an intention to evade the customs duty, the importer has made the goods liable for confiscation under s. 111(m) and 111(o) of the Customs Act, 1962. 4.4 In our view with the introduction of scheme self assessment the principles of ascertaining the mis declaration as laid down by the Apex Court, in various judicial pronouncements listed below have undergone change. Northern Plastics Ltd [1998 (101) ELT 549 (SC)] 22. As the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-Cus was not admissible to the appellant and demand could not have been made by invoking the extended period of limitation as provided for by Section 28(4), the demand which falls within the normal period of limitation needs to be upheld. Hon ble Supreme Court has in case of Jain Shudh Vanaspati [1996 (86) ELT 460 (SC)] interpreting the relevant date under Section 28 as it existed then held as follows: 4. The High Court based its judgment on material produced by the respondents before it to show that modern marketing practice required the movement of refined oil only in stainless steel or epoxy-coated tanks. It found that the material acceptable, particularly because one of the letters that the respondents produced had been written by the State Trading Corporation. The High Court held that the stainless steel containers that were used by the 1st respondents to import the said oil could not be treated as separate or independent items of importation. What had been imported was only the said oil and not the stainless steel containers. The High Court looked to the law and stressed Section 47, whereunder clearance for home consumption had been given. It took the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded, the date of refund; (d) in any other case, the date of payment of duty. 5. It is patent that a show cause notice under the provisions of Section 28 for payment of Customs duties not levied or short-levied or erroneously refunded can be issued only subsequent to the clearance under Section 47 of the concerned goods. Further, Section 28 provides time limits for the issuance of the show cause notice thereunder commencing from the relevant date ; relevant date is defined by sub-section (3) of Section 28 for the purpose of Section 28 to be the date on which the order for clearance of the goods has been made in a case where duty has not been levied; which is to say that the date upon which the permissible period begins to run is the date of the order under Section 47. The High Court was, therefore, in error in coming to the conclusion that no show cause notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130. Since there is no material change in the scheme of section 28 in respect of definition of relevant date , even after the amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are setting aside the penalty imposed under Section 114A of Customs Act, 1962in view of the Hon ble Apex Court decision in case of Rajasthan Spinning and Weaving Mills Ltd. {2009 (238) ELT 3 (SC)] wherein following has been held- 23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. That is what Dharamendra Textile decides. 4.11 Since Commissioner has considered the request for cross examination and has rejected the same after giving grounds for rejection we do not find any merits in bald assertion made by the appellants relying on the decision of the Hon ble Apex Court in case of Andaman Timber Industries. It is settled law that cross examination of the every person making a statement before Customs Officer is right of the appellant. It is for the adjudicating authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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