2010 (6) TMI 421 - AT - Customs

Demand Issuance of SCN subsequent to clearance of goods under section 47 of Customs Act, 1962 by assessee upon payment of duty assessed by proper officer of Customs, enquiries conducted by SIIB revealed misdescription and undervaluation of goods - absence of any corroboration - importer, admitted undervaluation of the goods and came forward to pay the differential amount of duty along with fine and penalty - statements were never retracted - Nothing contained in the statements given under Section 108 of the Act by their CHA or the CHA s employee was, in any way, in conflict with the fact admitted by the importer - classification and the enhancement of value proposed by the Revenue, the importer can hardly withdraw from the consistent position taken by him - importer wrongly classifies the goods in the Bill of Entry, it is for the assessing authority to correct the mistake in due discharge of the function - Commissioner (Appeals) should pass fresh order on the appeals filed by the parties Order set aside Appeal allowed by way of remand

Summary

Issues:
1. Correct classification of imported goods
2. Validity of out-of-charge order under Section 47
3. Admissibility of confessional statements under Section 108
4. Authority to adjudicate the case
5. Misdeclaration due to misclassification

Analysis:

1. Correct classification of imported goods:
The case involved the import of goods declared as "Synthetic Pile Fabrics" but later identified as 'Woven Pile Fabrics' classified under CTH 5801.33. The importer admitted to undervaluation, leading to a dispute over the classification and duty payable.

2. Validity of out-of-charge order under Section 47:
The department contested the authority to vary the out-of-charge order issued under Section 47 without resorting to Section 129D. The appellate tribunal referred to a Supreme Court judgment to support the position that a show-cause notice for duty recovery could be issued post-clearance under Section 47.

3. Admissibility of confessional statements under Section 108:
Confessional statements made under Section 108 by the importer were deemed admissible without corroboration, as they were consistent and not retracted. The tribunal upheld the legality of invoking Section 28(1) for duty recovery based on these statements.

4. Authority to adjudicate the case:
The tribunal clarified that the Additional Commissioner had the authority to adjudicate the case, contrary to the lower appellate authority's view. The issuance of a show-cause notice under Section 28 was deemed lawful and justified.

5. Misdeclaration due to misclassification:
The tribunal upheld that misclassification alone does not warrant confiscation or penalties under Sections 111 or 112. Correcting misclassification is the responsibility of the assessing authority, and it does not imply deliberate misdeclaration.

In conclusion, the appellate tribunal found several flaws in the lower appellate authority's order and remanded the case for a fresh decision by the Commissioner (Appeals) to ensure compliance with the law and principles of natural justice. The appeal was allowed by way of remand for further adjudication.