TMI Blog2024 (2) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... lone cannot be held responsible for suppression of the facts or Appellant has deliberately mis-classified goods in order to evade payment of the customs duty, when all relevant information and documents are submitted by the Appellant while filling the said Bill of Entry, in question. It is settled position in law that unless allegation of suppression of facts or mis-statement with intention to evade payment of duty is supported by credible or clinching independent evidence, the same cannot be sustained merely on unsustainable allegations. This being a case of interpretation regarding classification of imported crane and Grab, in absence of any clinching evidence to evade payment of duty, charge of suppression of facts, willful misstatement, fraud, etc., cannot be levelled, for initiation of SCN beyond the normal time limitation. Extended period cannot be invoked in every case of short payment of duty, but only in cases of wilful and deliberate suppression of fact having element of deception or malpractice is required to prove wilful and deliberate suppression of fact with intent to evade duty and this is not the case of wilful/deliberate suppression. It is settled law that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 165.086 dated 11.09.2008, Commercial Invoice 165158 dated 14.12.2009 etc. showing description of goods FLOATING CARGO CRANE . The proper officer of Customs, after examination of the said imported goods, assessed duty of Customs which was discharged by debiting from the DEPB script. On being satisfied for and payment of assessed duty, clearance of goods were allowed for home consumption by the proper officer under Section 47 of the Customs Act, 1962. Appellant had imported Grab [as parts of those cranes], filed 2 Bills of Entry No.149946 dated 18.03.2010 and 5570951 dated 26.12.2011 at Mundra port classifying the same under tariff item 89059090. Appellant had further imported another Floating Crane at Mundra port and filed Bills of Entry No. F-4117616 dated 19.07.2011 classifying under CTH 8905 90 90 and claiming benefit of concessional rate of duty under Notification No.21/2002-Cus dated 01.03.2002 (sr. no. 353). Accepting, the customs has assessed duty payment, clearance of the said goods were also allowed for home consumption. 1.2 Post clearance of the imported goods, Assistant Commissioner (SIIB), Customs, Kandla vide letter F. No. S/43-03/SIIB/2012-13 dated 22.05.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the O-I-O dated 20-04-2015 passed by Additional Commissioner vide O-I-A NO. MUN-CUSTM-000-APP-385-2015-16 dated 07-03-2016. Therefore, Appellant has filed present Appeal in this Tribunal. 2. Shri P D Rachchh, Learbed Advocate, appearing on behalf of the appellant submits that there was no need to issue SCN by customs invoking extended period alleging willful mis-classification in the matter as it was already investigated by DRI for all four Bills of Entry but issued SCN F. No. DRI/AZU/ JRU/20/2012 dated 13.04.2012 only for goods imported under bills of entry no .4117616 dated 19.07.2011. The duty demands in Bills of Entry No. 147807 dated 04.02.2010 and No. 149946 dated 18.03.2010 covered in the present SCN/Orders are time barred. In the SCN dated 29.01.2014 it is reflected that investigation in the present case was initiated by customs on the basis of letter dated 16.04.2012 of DRI to consider taking suitable action for safeguarding the revenue in respect of other bills of entry i.e. No. 147807 dated 04.02.2010 and 149946 dated 18.03.2010. However, before SCN was issued by customs on 29.01.2014, the question of mis-classification of goods without intention to evade duty was alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Counsel and reiterated the findings of impugned orders. He also submits to reject the Appeal. 4. We have carefully considered the submissions made by both the sides and perused the relevant records. We find that though the case about dispute of classification of imported goods, but Appellant has made detailed submissions on time limitation for issuance of SCN. Hence, without even going into the merits of classification of the imported goods, the present case can be decided on limitation. Therefore, we are not discussing issue on merits of the classification in question. In the present case, demand involved is for the imports of Crane and Grab vide Bills of Entry No.147807 dated 04.02.2010 and No. 149946 dated 18.03.2010, whereas the demand SCN No. S/43-03/SIIB/2012-13 was issued on 29.01.2014. Thus, entire demand is under extended period. The Show cause notice as well as Orders thereon alleged that appellant has not disclosed correct classification of imported goods in Bill of Entry filed, which has rendered them liable to pay the differential duty with interest and penalty. On this basis the larger period was invoked in the SCN dated 29-01-2014. We note that the SCN da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duty is recoverable along with interest. It is settled position in law that unless allegation of suppression of facts or mis-statement with intention to evade payment of duty is supported by credible or clinching independent evidence, the same cannot be sustained merely on unsustainable allegations. This being a case of interpretation regarding classification of imported crane and Grab, in absence of any clinching evidence to evade payment of duty, charge of suppression of facts, willful misstatement, fraud, etc., cannot be levelled, for initiation of SCN beyond the normal time limitation. Extended period cannot be invoked in every case of short payment of duty, but only in cases of wilful and deliberate suppression of fact having element of deception or malpractice is required to prove wilful and deliberate suppression of fact with intent to evade duty and this is not the case of wilful/deliberate suppression. It is settled law that there must be deliberate attempt by Appellant to suppress facts from Department with intention to evade payment of customs duty, which is not existing in facts of this case. Merely change in view by another authority after clearance of goods regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest already paid against the Bills of Entry No. F- 4117616 dated 19.07.2011. The Commissioner of Customs confirmed duty demand and appropriated amount paid and imposed penalty u/s 112(a) of Customs Act, 1962. Being aggrieved the appellant had preferred appeal Nos. C/226-227 201/2012 before this Tribunal at Ahmedabad which have been allowed by setting aside confiscation, R/fine and penalties imposed on appellants and holding that the appellant has declared their consignment correctly and was found correct on examination by lower authorities and that consignment of crane imported by appellant is not liable for confiscation vide this Tribunal s Order No. A/11171 to 11173/WZB/AHD/2013 dated 06.08.2013. The ratio of decision in the Appellant s own case also is applicable in the facts of this case to set aside confiscation and penalties imposed. 4.3 We also find that Assistant Commissioner (SIIB), Customs, Kandla vide their letter issued from F. No. S/43-03/SIIB/2012-13 dated 22.05.2012 had informed appellant that investigation was being conducted in the case of imports of the Crane and Grab vide Bills of Entry No.147807 dated 04.02.2010, 149946 dated 18.03.2010 and 5570951 date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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