9911796707
TMI Blog2024 (7) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Additional Commissioner has been upheld and the appeal has been dismissed. The Additional Commissioner by the order dated 07.11.2019 classified the goods imported by the appellant under Customs Tariff Item [CTI] 6102 30 10, CTI 6202 9390 and CTI 6210 5000 of the First Schedule to the Customs Tariff Act, 1975 [the Tariff Act] and confirmed the demand of differential duty of Rs. 12,71,462/- under section 28 (4) of the Customs Act, 1962 [the Customs Act] with penalty. The Additional Commissioner also confiscated the goods under section 111 (m) of the Customs Act, but gave an option to the appellant to redeem the confiscated goods on payment of fine of Rs. 1.50 lakhs. 2. The appellant is engaged in the business of manufacture and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garwal submitted that in the facts and circumstances of the case, the provisions of section 28 (4) of the Customs Act could not have been invoked. Elaborating this submission, learned counsel pointed out that the error in the classification of subject goods was a bonafide mistake and as soon as this was pointed, the appellant accepted the classification suggested by the department and paid the differential duty amount. To support this contention that the provisions of section 28 (4) of the Customs Act could not have been invoked, learned counsel relied upon an order passed by the Commissioner in respect of a similar matter where a categorical finding has been recorded that the provisions of section 28 (4) of the Customs Act could not have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord the order dated 24.02.2023 passed by the Commissioner in respect of a show cause notice dated 01.10.2022 issued to the appellant for the past consignment of goods imported from September 2015 in which invoking the provisions of section 28 (4) of the Customs Act were also invoked. 13. The Commissioner, however, not only held that the provisions of section 28 (4) could not have been invoked, but also held that sections 111 and 114A could also has not been invoked. The relevant portion of the order dated 24.02.2023 passed by the Commissioner is reproduced below :- "41. Consistent with the acceptance regarding mis-classification, Shri Abhik Saha undertook that they would pay the differential duty, along with fine and penalty which arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as willful suppression of fact, required to invoke extended period under section 28 (4). In coming to this conclusion, I also take note of the fact that atleast select consignments were physically examined by the department during the cargo clearance process and the precise nature of the jackets, including presence of zipper would have become evident during the said examination. I observe that upon being informed of the correct classification as per the HSN, the noticee have accepted the same and discharged the differential liabilities promptly, thereby supporting the position that non-disclosure of the presence of zipper was not a willful suppression of fact. Therefore, this is a simple case of mis-classification, wherein provisions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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