TMI Blog2024 (5) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... England and Wales) and M/s ASM international Limited cannot be a conclusive factor to classify the product as other than Austenitic Nickel Chromium Stainless Steel for the reason that from the said evidence it is clear that not only those products which contain 4.5% to 12% Nickel will fall under Austenitic Stainless Steel but even the low content Nickel in Stainless Steel will also fall under Austenitic Stainless Steel. Therefore, the mere reliance on the websites of M/s Aalco metals ltd. (England and Wales) and M/s ASM international Limited is incorrect for arriving at classification. Therefore, on the fact of the case which is not under dispute and on the authority mainly Indian Standards, the goods imported by the appellant are correctly classifiable under Chapter Tariff Heading 7220 9022 as Nickel Chromium Austenitic Type. Without prejudice to the above, we also find that the adjudicating authority has not confirmed the classification proposed in the show cause notice. The department in the show cause notice in respect of Hot Rolled Nickel Chromium Austenitic Type was proposed to be classified under 7220 1090 and Cold Rolled Nickel Chromium Austenitic Type was proposed to be cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked extended period of limitation under section 28(4) of Customs Act for demanding customs duty demand and has also proposed penalty. 1.2 During the period from FY 2018 to FY 2020 (Annexure-1) appellants have imported stainless steel coils and classified under CTH 7220 90 22. The Appellant have claimed benefit of the exemption from customs duty under Sl. No. 734 of the Notification No. 50/2018-Cus dated 30.06.2018 on imports of the subject goods. The composition of imported goods is as under-. Elements Symbol Composition % Nickle Ni 1.010-1.060 % Chromium Cr 12.5 Carbon C 0.14 Manganese Mn 9 Sulfur S 0.03 Phosphorus P 0.03 Silicon Si 1 Copper Cu 0.5 1.3 It is the case of the department that the Appellant has misclassified the subject goods under CTH 7220 90 22 as subject goods doesn't have the sufficient amount of nickel content to be classified as Nickel-Chromium Austenite Steel. According to department to qualify as nickel austenitic stainless steel the nickel content should be ranging from 4.5% to 12%. Since in the present case nickel content is approx. 1%, according to department imported goods are not nickel austenitic stainless steel. 1.4 The show cause notice dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded N1 to N6 series of grade which are treated as nickel austenitic stainless steel for which the nickel content needs to be 1% to 6% and further for N4, N5, N6 series it can have Nickel from 0.20% to 0.95%. 2.2 Ld. Commissioner of customs has in the impugned order has also relied upon copper content and held that since the copper content in the subject goods is ranging from .80% to .85% only which is less than 1.5% as provided in N1, N2, N3 grade. Thus on that basis Ld. Commissioner of customs has held that subject goods are not nickel austenitic stainless steel. It is submitted that impugned order has gone beyond the SCN to that extent. 2.3 In any case, it is submitted that Ld. Commissioner of customs has ignored the other grade of nickel austenitic stainless steel such as N5, N6, N7 provides that the Nickel (Ni) content 0.20% to 0.95% and Copper (Cu) content 0.4% to 2.5%. Thus, it is submitted that as per the Bureau of Indian Standards (BIS), even Nickle with 1% or less than 1% and copper with .80% is classified as Austenitic Steel. It has following chemical composition : Name Ni Cr N5 0.45% - 0.95% 14.0% TO 16.5% N6 0.25% - 0.95% 13.5% TO 16.0% N7 0.20% - 0.95% 13.5% TO 16.0% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation of law. In this regard he placed reliance on the case of Daxen Agritech India Pvt. Ltd. 2023 (12) TMI 1080 (Tri. Del.), Commissioner of Customs Hyderabad vs Riddi Siddhi Bullions Ltd. 2017 (355) ELT 585 (Tri. Hyd.), Granite India Limited 1997 (92) ELT 84 (Tri. Mad.). He also submits that the subject goods are not liable for confiscation under Section 111(m) of the Customs Act, 1962, therefore, redemption fine is not imposable. 3. On the other hand, Shri Tara Prakash, Learned Deputy Commissioner (Authorized Representative) with Shri P. Ganesan, Learned Superintendent(Authorized Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. 5. We find that in the entire case there is no dispute about the fact such as the nature of goods, documentation etc. The whole case was made out for change of classification on the basis that the 1% Nickel content in the product will not qualify the imported goods as Nickel Chromium Austenitic Stainless Steel‟. The contention of the Revenue is that to qualify as Nickel Austenitic Stainless Steel, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 14%, whereas in the present case the goods contain 1.010-1.060% and Chromium is 12.5%, therefore, it is clearly in compliance to the specification for classifying the product as Austenitic Nickel Chromium Stainless Steel‟. We find that department's reliance on the websites of M/s Aalco metals ltd. (England and Wales) and M/s ASM international Limited cannot be a conclusive factor to classify the product as other than Austenitic Nickel Chromium Stainless Steel for the reason that from the said evidence it is clear that not only those products which contain 4.5% to 12% Nickel will fall under Austenitic Stainless Steel but even the low content Nickel in Stainless Steel will also fall under Austenitic Stainless Steel. Therefore, the mere reliance on the websites of M/s Aalco metals ltd. (England and Wales) and M/s ASM international Limited is incorrect for arriving at classification. Therefore, on the fact of the case which is not under dispute and on the authority mainly Indian Standards, the goods imported by the appellant are correctly classifiable under Chapter Tariff Heading 7220 9022 as Nickel Chromium Austenitic Type. 6. Without prejudice to the above, we also find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of the learned Counsel is that the issue of classification of the products in question was within the knowledge of the department at the time of clearing of the subject goods at the relevant time of imports as the department itself had filed an appeal against the Order-in-Appeal dated 17.02.2014 before the Tribunal and therefore the allegations of suppression are not made out and so the extended period of limitation cannot be invoked. The learned Authorised Representative for the revenue have submitted that the period of limitation has been rightly invoked and cited several judgements in support thereof. 10. We find that show cause notice was issued on 2.7.2018 for the period 03.07.2013 to 03.03.2018, covering several bills of entries as given in Table-A above which is per Annexure-A to show cause notice. In the appeal filed against the first assessment order dated 27.07.2012, the Commissioner (Appeals) vide order dated 16.08.2012 remanded the matter to the adjudicating authority to pass suitable order. On remand, the Adjudicating Authority vide order dated 24.05.2013 once again confirmed the classification under CTH 21069099, however, the appellant challenged the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der that the importer and the appellant (in importer‟s behalf) should have filed bills of entry contrary to the order of the Commissioner in good faith. 12. There is a well established practice in the department to deal with cases with the order which holds the field is against the revenue and an appeal is pending with the superior court or Tribunal. SCN are issued periodically to protect revenues interest and they are transferred to the call book which are then decided after the order of the superior Court or Tribunal is received. In these bills of entry also, after the order of the Commissioner (Appeals), SCNs could have been issued and transferred to Call Book and decided after this Tribunal passed the final order. However, until the final Order of this Tribunal was issued, the order of Commissioner (Appeals) was binding both on the importer and the officers. 11. The aforesaid observations of the Tribunal (against the present impugned order), holds the field that the appellant was justified in adopting the classification while filing the bills of entry. This is sufficient to turn down the revenue‟s contention about the existence of wilful suppression of facts or deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Sugar Factory 1995 (78) ELT 401 has categorically laid down that where facts are known to both the parties, the omission by one to do what he might have done, and not that he must have done, does not render it suppression. Thus when all the facts are before the department as in the present case then there would be no wilfulmis-declaration or wilful suppression of facts with a view to evade payment of duty. The relevant para from the judgement in Nizam Sugar Factory (supra) is quoted below:- 4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty. In this case, it is seen that there are divergence of views as to whether this activity carried out by the appellant amounts to manufacture or not. It is also seen that when this decision of the Collector (Appeals) was taken up before the Tribunal, the Tribunal while holding against the assessee took note of an earlier decision of the Tribunal reported in 1995 (80) E.L.T. 145. In that decision, one of the member in fact had held that this does not amount to manufacture as could be seen from Para 5 of the abovesaid order. Para 5 of the order reads as follows : - 5. We have considered the submissions made by both sides with reference to the facts and perused the records. We also take note of the submissions made by the appellant s Counsel that the period of dispute relates to prior to 17-3-1985 since the new Tariff Entry 23E was introduced from 17-3-1985. We find that this issue was considered in the case of Fine Marble and Minerals (P) Ltd. (supra) and this view was upheld by the Supreme Court since the appeal filed by the Department was dismissed as it was rightly argued by the appellant s Counsel. It is not confined to slabs but also the marble tiles. Because in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not amount to manufacture. In these circumstances, the appellants certainly had grounds to entertain a bona fide belief that the goods were not excisable. We, therefore hold that for this reason, it cannot be said that there was a wilful suppression on the part of the appellant. 7. In regard to valuation, it is seen that the District Industrial Officer had given a certificate and the appellants were guided by the abovesaid certificate while declaring that the value of the plant and machinery is below Rs. 20 Lakhs. With respect to the imported machinery certain items were shown as surplus and spares. Therefore, they had not taken the same into reckoning on the bona fide belief that the value of the same is not required to be added to the value of the machine in question. As it is, we find on a perusal of the invoice that the value of all those parts could not have been included and only certain items were required to be included. He had also referred us to the decision of the Government of India in order in revision No. 299/1978 dated 6-4-1978 reported in 1979 (4) E.L.T. (J 105) (G.O.I.) wherein the Government of India stated that one of the determining factor for exemption will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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