9911796707
TMI Blog2025 (3) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... and classified the said goods under CTH 39031990, as mentioned in the Country Of Origin Certificate (COO) issued by the exporting country namely, Singapore. The appellant claimed exemption form BCD under Notification No. 10/2008-CUS dated 15.01.2008, as amended by Notification No. 53/2015-CUS dated 23.11.2015. The department was of the view that the goods imported by the appellant are Polystyrene in 'granular form' which is liable to be classified under the CTH 39031990 attracting BCD @ 4.45%. Accordingly, the Customs Officers drawn samples and sent the same for testing to Central Institute of Plastics Engineering & Technology, Haldia. As per the test report received, the imported goods were Polystyrene in 'granular form'. 1.2. On the basis of the test report received in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017, the Department extended the investigation to all seventeen previous imports made by the appellant. The Department considered that the Polystyrene materials imported by the appellant through the seventeen previous imports were also wrongly classified by the appellant under the CTH 39031910 to claim the exemption form BCD under Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant- company has filed an appeal before this Tribunal. Shri Rushab Thakker, Director of the appellant-company, has also filed a separate appeal against the imposition of penalty on him. As both these appeals emanate from the same order, both are taken up together for decision by a common order. 2. It is the submission of the Ld. Counsel appearing on behalf of both the appellants that the appellant-company have imported all the material in respect of the 17 previous Bills of Entry from Singapore and the same were submitted before the customs authorities along with COO Certificate (AIFTA Certificate) as issued by the Designated Authority of the Country of Export i.e. Singapore; they have classified the goods on the basis of classification done by the Designated Authority of Singapore being the country of origin as they only knew the description of the goods in their physical form. Thus, the appellant submits that there is no wilful misstatement or suppression of facts with an intention to evade customs duty established in this case, in respect of all the 17 past imports. Hence, the appellant contends that there is no justification for the invocation of extended period as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under CTH 39031990 and not under 39031910 which relates to 'Polystyrene GPPS 1450' in powder from. In this regard, the appellant points out that after the receipt of the test report, as per the insistence of the Department, they paid the customs duty without the benefit of exemption provided under Notification No. 10/2008-Cus dated 15.01.2008. The appellant submits that such findings to the effect that the imported materials as per the said B/E 4199210 dated 29.11.2017, were in granular form, cannot be the basis for raising demand in respect of the imported materials covered under the 17 other Bills of Entry, in which cases no samples were drawn for chemical test; however, the Department has charged Customs duty along with other consequential effects on all the 18 Bills of Entry, which is legally not sustainable. They submit that the test report received in respect of the goods imported vided B/E 4199210 dated 29.11.2017 is applicable only for that Bill of Entry and the same cannot be applied to all previous imports. In support of their stand, the appellant places reliance on the decision rendered by this Tribunal in the case of Shalimar Paints Ltd. v CCE, Calcutta [2001(134) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 28(9) of the Customs Act, 1962, as it existed during the relevant period, is reproduced below: "Section 28 (9):The proper officer shall determine the amount of duty or interest under sub-section (8), - (a) within six months from the date of notice, where it is possible to do so in respect of cases falling under clause (a) of sub- section (1); (b) within one year from the date of notice, where it is possible to do so in respect of cases falling under sub-section (4)." 5.3. We observe that when suppression clause is invoked, the Show Cause Notice is to be adjudicated within a period of one year from the date of issue of the notice. In this case, the Notice was issued on 05.07.2018. It was adjudicated within one year. The submission of the appellant in this regard is that there is no suppression of fact established against them in this case and hence the notice should have been adjudicated within 6 months from the date of issue of the notice. We find that the said notice has been issued by invoking extended period of limitation. The ld. adjudicating authority has also held that suppression of fact is invokable in this case. Thus, one year's time is available to him for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable. We observe that the test report received in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017 is applicable only for that Bill of Entry and the same cannot be applied to all previous imports. We find that this view is supported by the decision given by this Tribunal in the case of Shalimar Paints Ltd. v Commissioner of Central Excise, Calcutta [2001(134) E.L.T. 285 (Tri.-Kolkata)], which has been subsequently upheld by the Hon'ble Supreme Court as reported in 2002(145) E.L.T. A242 (SC). The relevant part of the said decision is reproduced below : "7. The first grievance of the appellant is that though the classification lists in question covered about 30 products, test reports relatable to only 4 products are available and there is absolutely no material against the appellant in so far as the remaining 26 products are concerned. He submits that presuming though denying that the test reports of CRCL are correct, the same can be made the basis for classifying only those products to which the test report relates. The same cannot be made applicable to the other items for which no samples were either drawn or if samples were drawn, there is no test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sustainable and accordingly, the same are set aside. Since, the mis declaration alleged in the previous 17 imports is not established, we also hold that the said goods imported vide those 17 Bills of Entry are not liable for confiscation. 6.3. Regarding the penalty of Rs. 10, 00, 000/- imposed on Shri Rushab Thakker, Director of the Appellant-Company, under Section 114AA of the Customs Act, 1962, we observe that it is his contention that he had declared the same description in the Bills of Entry as had been mentioned by the exporter in the Country of Origin Certificate. However, mis-declaration with intention to evade Customs duty has been established in this case in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017. Hence, we are of the view that penalty under Section 114AA of the Act is liable to be imposed on the Director of the Appellant- Company, but the penalty imposed should commensurate with the duty involved in the said Bill of Entry. In these circumstances, the penalty imposed on Shri Rushab Thakker, Director of the Appellant-Company, under Section 114AA of the Act is reduced from Rs.10, 00, 000/- (Rupees Ten Lakhs only) to Rs.1, 00, 000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
