TMI Blog2022 (9) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation, there ought to be a positive act and not merely a failure to pay duty which is not on account of any fraud, collusion or willful misstatement or suppression of facts. The CESTAT, in the present case, has clearly held that the respondent had been importing the goods under CTH 1702, which the learned counsel for the parties agree, attracted the same rate of duty, as the goods imported and falling under CTH 1704 and held that the department was very well aware of the said classification and that in the past, assessments were completed based thereupon. It was, thus, held that only because there was a change of view by the department, the respondent could not have been said to have either mis-declared or suppressed facts in classifying its goods at the time of its import under CTH 1702. Thus, it appears that had it been a case of a deliberate and willful attempt on the part of the respondent to suppress the facts or make any willful misstatement for purposes of evading the payment of duty, then it would have in the past, perhaps claimed the benefits by classifying it under CTH 1701, when it attracted a lower rate of duty or was completely exempt. Appeal dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the CESTAT held that the imposition of penalty was uncalled for and unwarranted and set aside the order to that extent. This was in reference to Custom Appeal No. 89829 of 2018. The present appeal has been preferred against the order of the CESTAT, dated 25th September 2020 questioning only the view expressed in regard to Custom Appeal No.85493 of 2019, which is relevant to the present controversy. 5. The issue in Appeal No. 85493 of 2019 related to the claim of the respondent that the demand in the said appeal was barred by limitation. The CESTAT allowed the appeal filed by the respondent and set aside the demand which had been conformed in the order impugned before it by invoking the extended period of limitation. What was held by the CESTAT is reproduced hereunder :- 17. The next question relates to the claim of the appellant that the demand in the case of Appeal No. C/85493/2019 is barred by limitation. The appellant during the period March, 2012 to February, 2015, admittedly from time to time filed Bills of Entry declaring their product under CTH 17029090. They have submitted that the product in question had been physically examined by the department; also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent, who was dealing in the goods since long that the imported goods fell under CTH 1701 and not CTH 1704 . It was urged that in the regime of self-assessment, the correctness of the information given in the bill of entry has to be certified by an importer, wherein the appellant had willfully filled up incorrect details by mis-declaring the goods to be falling under a wrong tariff head. Learned counsel for the respondent, on the other hand, reiterated the findings of the CESTAT. 7. On going through the order passed by the CESTAT, it can be seen that the basis for the CESTAT holding that the extended period of limitation could not be invoked in the present case was, that there was no suppression of facts or mis-declaration. 8. Section 28 of the Customs Act envisages that where any duty has not been levied or not paid, inter-alia, has been short-levied or short-paid by reasons of (a) collusion; (b) any willful misstatement and, (c) or suppression of facts, by the importer or the exporter, or the agent or employee, the proper officer shall, within five years from the relevant date, to serve notice on the person chargeable with duty or interest requiring him to show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal itself as being based on no evidence. 11. In Cosmic Dye Chemical Vs. Collector of Central Excise, Bombay (1995) 6 SCC 117 , it was held : 6 Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word willful preceding the words misstatement or suppression of facts which means with intent to evade duty. The next set of words contravention of any of the provisions of this Act or rules are again qualified by the immediately following words with intent to evade payment of duty . It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful. 12. The stand of appellant before the Apex Court in the above case was that it was under a bona-fide belief that the goods were fully exempt from duty in a particular notification. Two High Courts had taken a view that the goods were exempt from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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