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TMI Blog2008 (10) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed by the department. On testing the sample of the imported goods, it was found that the Mulberry raw silk imported was of grade 2A as against the declared grade 4A. The original authority found that the appellants had misdeclared the grade of the imported silk in order to evade paying anti-dumping duty (ADD), which was leviable on Mulberry raw silk of 2A grade. In demanding the ADD, adjudicating a demand notice issued under Section 28 of the Act, the original authority had turned down the objection raised by the appellants that a demand following findings different from the assessment order could not be made without following the procedure of review under Section 131 of the Customs Act, 1962 (the Act). The original authority had rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulberry raw silk of grade 4A. 3. Ld. SDR submits that the Show Cause Notice was issued in time as the relevant date applicable in the subject case was that prescribed in Clause (a) of sub-section (3) of Section 28 of the Act. As the out of charge order was passed on 12-9-04, the Show Cause Notice issued within four months time was well within the prescribed time limit. She countered importer's plea that the demand could not have been raised without following the review procedure in terms of Section 131 of the Act citing the ratio of the Apex Court judgment in Jain Sudh Vanaspati case (supra). The imported goods were Mulberry raw silk of grade 2A subject to ADD. The grade was misdeclared in the Bill of Entry as grade 4A with intent to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riety. In similar situations, the Supreme Court has held in the case of Northern Plastics Ltd. (supra) that the declaration is in the nature of a claim made on the basis of belief entertained by the Appellants and therefore cannot be said to be misdeclaration under Section 111(m) of the Customs Act. It has also been held by the Tribunal in the case of Jay Kay Exports and Industries (supra) that finalization of Tariff Heading under which the goods will fall is the ultimate job of the Customs authorities and if the Appellants have claimed wrong classification according to his limited understanding of the Customs Law, mens rea cannot be attributed to him. Accordingly, we hold that in the present matters, it cannot be claimed by the Revenue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly shipping tin plate waste. In the absence of evidence of wilful suppression of facts and misdeclaration with intent to evade duty the Tribunal set aside confiscation and penalty. 4. In the impugned order the Commissioner (Appeals) held that there was deliberate mis-statement and suppression of facts by the importer. The goods declared to be 4A grade were found to be 2A grade on test. Therefore, the larger period of limitation was available. The Commissioner (Appeals), however, observed that, the relevant date to raise demand in the instant case was as provided in Section 28(3)(a). Section 28(3) of the Act reads as follows:- "(3) for the purpose of sub-section (1), the expression "relevant date" means- (a) In a case where duty is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant that they acted bonafidely as per shipping documents of the importer could not be countenanced. 5.2 I find that the appellant had declared the description of the goods as it had ordered with the Chinese supplier. The same description figured in the related invoice and the packing list. There is no evidence that M/s. J.N. Textiles had deliberately misdeclared the description to evade the anti-dumping duty found due on the imported goods namely Mulberry raw silk of 2A grade. As per the purchase order, packing list and invoice of the supplier, the goods were Mulberry raw silk of 4A grade. The certificate of inspection issued by Entry-Exit Inspection and Quarantine of Government of People's Republic of China also showed the grade of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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