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TMI Blog2025 (1) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of Entry under the CTH 96031000. Accordingly, the ld. adjudicating authority has confirmed the demand of import duty of Rs.4,59,025/- under Section 17(4) of the Customs Act, 1962, after denial of duty benefit as claimed by the appellant for BCD and IGST. 2. Briefly stated facts of the case are that the appellant Shri Ravi Sarda is the Proprietor of M/s. Mahesh Silks, Uttar Pradesh and is engaged in the business of export-import under valid IEC No.1507002815. The appellant imported a consignment of "Broom Sticks (between 140 to 160 cm.)" from M/s. Pt. Royal Exotic Indonesia under their Invoice No.011/INV/REI/IV/2019 dated 14.04.2019 and filed Bill of Entry No.3106702 dated 04.05.2019 for clearance of the imported goods. In the Bill of Entry, the goods were classified by the appellant under the Chapter sub-heading 96031000 of Customs Tariff Act, 1975 in accordance to the import invoice and other documents including country of origin certificate. In the said Bill of Entry, the appellant had claimed the benefit of Sl. No.1580 (I) of Notification No.46/2011-CUS dated 01.06.2011 with respect to BCD and Sl. No.144 of Notification No.02/2017-Cus. towards exemption of IGST. 2.1. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs.45,000/- upon the appellant/importer under Section 112(a)(ii) of the Customs Act, 1962. 2.4. On appeal, the Ld. Ld. Commissioner (Appeals) has upheld the demands confirmed in the Order-in- Original dated 28.06.2019. Aggrieved against the confirmation of the above demands in the impugned order, the appellant has filed this appeal. 3. The appellant submits that the Ld. Appellate Commissioner has erroneously held that they have not challenged the classification as proposed by the authority which is factually not correct. They have disputed the change of classification of the imported goods by the authority; initially they filed the Bill of Entry No.3106702 dated 04.05.2019 for clearance of the imported goods under the Chapter sub-heading 96031000 of Customs Tariff Act, 1975 in accordance to the import invoice and the classification of the goods available in the Country of Origin Certificate (COO). They had claimed the benefit of Sl. No.1580 (I) of Notification No.46/2011-CUS dated 01.06.2011 with respect to BCD and Sl. No.144 of Notification No.02/2017-CUS towards exemption of IGST. When the benefit available at Sl. No.1580 under the Notification 46/2011-Cus was not extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds under import documents as well as Bill of Entry as "Broom Sticks (between 140 to 160 cm.)", whereas, while passing the Adjudication Order the Adjudicating Authority under the heading "ORDER" had changed the description of the goods as "Nipah long and short (Broom Sticks)" which is legally not sustainable and hence the order is to be considered as void ab-initio. The Appellate Commissioner has also continued to uphold the same mechanically when this is settled position of law that the Authority cannot travel beyond the scope of the Show Cause Notice. 3.3. The appellant submits that the change of classification of the imported goods from CTH 96031000 to CTH 14049000 of the Customs Tariff Act, 1975 is absolutely erroneous in law on the part of the Assessing Authority below. They contend that from the impugned Order it would be evident that in the Examination Report dated 14.05.2019, it was recorded that the imported goods were found as "Vegetable Twigs (Raw material used for manufacture of Jhadu)"; thus, it is evident that the goods under import were nothing but raw material for manufacture of 'Jhadu'. The appellant referred to the definition of 'Broom' as provided in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is bad in law; The authorities below have referred to Rule 12 of Determination of Origin of Goods under the Preferential Trade Agreement between the Government of ASEAN and Indian Rules, 2009 to arrive at a conclusion that only in case of theft, loss or destruction of a AIFTA Certificate of Origin, another certificate can be issued. However, it is their contention that Rule 12 of Customs Tariff [Determination of Origin of Goods under the Preferential Trade Agreement between the Government of Member States of the Association of South East Asian Nations (ASEAN) and the Republic of India] Rules, 2009 does not provide any such criteria for issuance of another certificate. The appellant further submits that issuance of another certificate in the present case does not actually matter; The dispute is about classification of goods and not about its origination; when the origination of the goods is being beyond dispute, benefit of Notification No.46/2011- CUS dated 01.06.2011 and Notification No. 2/2017 dated 01.07.2017 cannot be denied to the importer/appellant. They submit that even if it is admitted that the goods merits classification under the CTH 14049090, then also benefit of Sl. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order. He submitted that the appellant admitted the classification of the imported goods under the CTH 14049090 and obtained a revised COO. Thus, he contends that it is evident that they have mis declared the goods earlier under the CTH 96031000, with a view to avail concessional duty benefits available under the notifications 46/2011-Cus for BCD and 01/2017 for IGST. Accordingly, he submitted that the imported goods has been rightly reclassified and import duty demanded . He supported the confiscation of the goods and imposition of fine and penalties on the ground of mis declaration. 5. Heard both sides and perused the appeal documents. 6. We observe that the appellant imported a consignment of "Broom Sticks (between 140 to 160 cm.)" from M/s. Pt. Royal Exotic Indonesia under their Invoice No.011/INV/REI/IV/2019 dated 14.04.2019 and filed Bill of Entry No.3106702 dated 04.05.2019. In the Bill of Entry, the goods were classified by the appellant under the Chapter sub-heading 96031000 of Customs Tariff Act,1975 and they have claimed the benefit of Sl. No.1580 (I) of Notification No.46/2011- CUS dated 01.06.2011 with respect to BCD and Sl. No.144 of Notification No.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specified. We observe that as per the General Rules of Interpretation for classification of goods, a specific heading is always preferred over a general heading. In the present case we observe that the goods imported by the appellant are 'brooms' which is specifically covered under the sub-heading 9603 whereas sub-heading 1404 is a general entry covering vegetable material not elsewhere specified. Resorting to such general entry is required only when there is no specific sub-heading covering the goods. In this case there is a specific sub-heading 9603 is available in the Tariff covering the goods brooms and broomsticks used for making brooms. Thus, on comparison of the description of the entries available in CTH 9603 and CTH 1404, we observe that the imported goods are more appropriately classifiable under Chapter 96 and not under Chapter 14. 6.3. Further, we observe that classification of goods under Chapter 96 are governed by the chapter Notes available in that chapter. In this regard, Chapter Note 3 of Chapter 96 is relevant for classification of the goods under the sub-heading 9603. We observe that the lower authorities failed to refer the Chapter Note 3 of Chapter 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at issuance of another Country of Origin certificate in the present case does not actually matter. The dispute in this case is about classification of goods and not about its country of origin. When the origination of the goods is being beyond dispute, benefit of Notification No.46/2011- CUS dated 01.06.2011 cannot be denied to the importer/appellant. We observe that initially the appellant has filed the Bill of Entry No.3106702 dated 04.05.2019 for clearance of the imported goods under the Chapter sub-heading 96031000 of Customs Tariff Act, 1975 in accordance to the import invoice and country of origin certificate. They had claimed the benefit of Sl. No.1580 (I) of Notification No.46/2011- CUS dated 01.06.2011 with respect to BCD and Sl. No.144 of Notification No.02/2017-CUS towards exemption of IGST. When the benefit available at Sl. No.1580(I) under the Notification 46/2011-Cus was not extended to them, they approached the supplier for another Country of Origin Certificate with change in the classification under CTH 14049090 and obtained the same under Ref. 0018320/KTG/2019 dated 15.04.2019, since exemption from BCD is available under Sl. no 116(I) of the Notification No. 46/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order, by denying the benefits of the above said notifications, is not sustainable and accordingly, we set aside the same. 8. With respect to the order of confiscation of the goods under Section 111(m) of the Customs Act, 1962, we observe that in a case of classification dispute, there cannot be a question of mis- declaration. The goods were available for examination and the same were described and declared in the Bill of Entry in accordance to the import invoice and other import documents. It is not the case of the department that the appellant/importer had manipulated any document of import in order to avail any undue benefit. The Proper Officer of Customs can always dispute the classification. Change of classification in the present case does not affect the duty liability also. In such circumstance, we hold that the question of mis- declaration does not arise in this case. Accordingly, we set aside the order of confiscation and imposition of fine in lieu of such confiscation in the impugned order. When there is no question of confiscation of the imported goods, the question of imposition of penalty does not arise. We also observe that, at paragraph 12 of the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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