TMI Blog2022 (6) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the issuance of the show cause notice and the only issue raised by the appellant is about redemption fine and penalty. The imported goods herein is Amphibious bus which is also a specialized motor vehicle which runs on road as well as on water. Thus, being a specialized transport vehicle, it is appropriately classifiable under CTH 87 Section XVII of Custom Tariff Act, which covers vehicles, aircraft, vessels and associated transport equipment. As per para 4(b) of Section XVII, amphibious motor vehicles are classified under the appropriate heading of Chapter 8703. However in bill of entry they claimed the classification of the goods under CTH 8901. As per the appellant, they merely goes by the advice of their consultant chartered accountant who vide his opinion dated 13.1.2017 advised them that amphibious bus shall be covered either under CTH 89019000 or 89069000. The law laid down by the Hon ble Supreme Court in the matter of NORTHERN PLASTIC LTD. VERSUS COLLECTOR OF CUSTOMS CENTRAL EXCISE [ 1998 (7) TMI 91 - SUPREME COURT] which has been relied upon by learned Counsel, will not be of any help for the appellant as the said judgment was passed since there was bonafid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, USA. The total invoice value was shown as Rs.2,99,96,047/- and assessable values as Rs.3,02,96,007. The appellant claimed the classification of the amphibious bus under CTH 89019000 which pertains as per chapter Heading for Ships, boats and floating structures with rate of duty @10%BCD+Nil CVD +Nil Addl.CVD+2% E.Cess+1% H.S. Cess. On 16.2.2017 the Appellant paid custom duty of Rs.44,57,149/-. Since the revenue had some doubt about the classification therefore the matter was taken up for investigation by the Central Intelligence Unit (CIU). During the investigation it came to notice that the IGM No. 2156599 dt. 25.1.2017 for the goods covered under the aforesaid B/E showed number of package as one unit whereas in the B/E the said one unit has been mis-declared and splitted into two items. Since there was attempt to clear amphibious bus by mis-declaring therefore the same was seized under panchnama dated 20.2.2017. Thereafter various statements were recorded. The Revenue was of the view that Amphibious bus falls under CTH 87032410 and attract rate of duty @ 100%BCD+ 1% CCD+ 4% Infra cess+ 30% CVD(+Rs.20,000/-per unit)+2% Ed.Cess + 1% H.Ed.Cess+4%Addl.duty (Import). Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and modified the Adjudicating Order only to the extent of reducing the penalty on the appellant u/s. 112(a) to Rs.5 lakhs. Rest of the Adjudicating Order was upheld. 5. Learned counsel submits that the appellant was granted tender by Jawaharlal Nehru Port Trust (JNPT) for supply of an amphibious bus, which is capable of travelling on land as well as in water and that they imported the bus to supply the same to JNPT. Clause 3(xi) of the letter of acceptance dated 3.6.2015 issued by JNPT pertains to payment of customs duty which states that all customs duty paid by the appellant pertaining to the imported bus will be reimbursed by JNPT and since whatever duty they have paid is to be reimbursed by JNPT, therefore there was no intention to evade duty. She further submits that the appellant merely goes by the advice of their consultant chartered accountant who advised them that amphibious bus shall be covered either under CTH 89019000 or 89069000. The opinion from the consultant was sought on 13.1.2017 whereas the B/E was filed on 10.2.2017. According to her the complete description of the item under import was described in the B/E and although two items are mentioned therein but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulu mounted on Scania 310 chassis supplied by M/s. Scania CV AB Sweden claiming classification of goods under CTH 8901. The appellant had claimed the CTH 89019000 which pertains as per chapter Heading reads as Ships, boats and floating structures and further the explanatory notes to the said chapter heading clearly excludes Amphibious motor vehicles designed to travel over both land and certain tracks of water (swapms etc.) are classifiable as motor vehicles in Chapter 87. There is no dispute that mis-classification was there as the appellant have not challenged the re-classification by the revenue rather they have paid the differential duty alongwith interest before the issuance of the show cause notice and the only issue raised by the appellant is about redemption fine and penalty. The issue to be decided is whether the appellant had mis-declared/ mis-classified the goods so as to make them liable for confiscation u/s 111(m) and consequently penalty there of and whether the said mis-classification was with some malafide intention or not? The vehicle which in issue is amphibious bus which is a specialized motor vehicle which runs on road as well as on water. The heading 8703 cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 6.5.2017 as according to them the appellant was aware about the correct classification. In the said show cause notice JNPT also observed that the appellant had intentionally mis-represented the estimated customs duty payable in order to manipulate the bidding process to receive the tender from JNPT for supply of Amphibious bus and called for the explanation why the contract should not be terminated. 7. The law laid down by the Hon ble Supreme Court in the matter of Northern Plastic Ltd. (supra) which has been relied upon by learned Counsel, will not be of any help for the appellant as the said judgment was passed since there was bonafide belief as therein the appellant s earlier consignment bearing the same description, same classification, identical claim for exemption was cleared by the Delhi Customs House for the previous year, whereas in the instant appeal looking at their earlier import which was under adjudication at the time of the instant import, if the appellant had any doubt regarding classification then instead of taking shield of opinion from their chartered account they could have requested for first check examination and could have taken advice from the customs a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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