2020 (7) TMI 325 - AT - Customs

Classification of imported goods - import of natural gum / Gum Arabic - prohibited goods or not - benefit of Notification No. 96/2008 Customs dated 13 August 2008 - exemption from Counter Veiling Duty (CVD) - applicability of CBEC Circular dated 28 June 2007 - requirements for Gum Arabic as per standard specification of IS 6795-2007 met or not - HELD THAT - It is found that the Department did not reject the claim of the appellant for classifying the subject consignment under the CTH 13012000 straight away at the time of filing of the bills of entry, though there is no document which may indicate that import consignments are Gum Arabic. The goods were assessed provisionally as per the importers claim and sent for chemical examination for determining the true nature of the import goods. Benefit of N/N. 96/2008 Customs dated 13 August 2008 - HELD THAT - The import documents and the chemical examination report of the consignments establish that consignments were other Natural Gum . As the exemption Notification No. 96/2008 Customs dated 13 August 2008 exempts only Gum Arabic, classifiable under CTH 13012000 from the levy of the customs duty and it is established that the consignments are not Gum Arabic but other Natural Gum, it has to be held that the imported consignment were classifiable under Chapter sub-heading 13019019 and are not entitled for exemption notification benefit under Notification No. 96/2008 Customs dated 13 August 2008. Thus, there are no infirmity in the order of the Commissioner (Appeals) and, accordingly, we uphold the findings made in this regard. Incorrect details and declarations regarding the description and classification under CTH 13012000 or not - HELD THAT - The custom house agent firm namely M/s Bharti Freight Forwarders Pvt. Ltd. and its Director Anil Kumar Tiwari only described the goods in the bills of entry as provided in the bills of landing and the invoices. It is also a matter of record that in the show cause notice no evidence has been brought forward to indicate that the clearing agent and its Director had conscientiously done anything to evade the customs duty - No malafide can be attached to such a mistake, when the goods were provisionally assessed and samples were drawn from the import consignments to determine the true nature and identity of the import consignments. Thus, there is no substance that the clearing agent did any omission and commission consciously which led to evasion of customs duty. Imposition of penalty on the CHA firm and its Director under Section 112 (b) of CA - HELD THAT - None of the requirements provided under Section 112 (b) have been established against the clearing agent. Since the importer - appellant himself has sought benefit of the exemption notification by classifying the goods under chapter sub-heading CTH 13012000, which was allowed by provisionally assessing the Bills of entry subject to chemical test by the Department itself, the Department is not justified in alleging any malafide on the part of the CHA firm and its Director. Thus, there is no ground to levy any penalty on the appellant CHA firm M/s Bharti Freight Forwarders Pvt. Ltd. and its Director Anil Kumar Tiwari - Penalty set aside. There is no merit in the appeal filed by M/s B.L. Goyal and it deserves to be dismissed - the Appeals filed by M/s Bharti Freight Forwarders Pvt. Ltd. and its Director Anil Kumar Tiwari, deserve to be allowed - Application disposed off.

Summary

Issues Involved:
1. Classification of imported goods (Natural Gum vs. Gum Arabic)
2. Eligibility for customs duty exemption under Notification No. 96/2008
3. Validity of penalties imposed on the importer and clearing agent

Issue-wise Detailed Analysis:

1. Classification of Imported Goods:
The primary issue was whether the imported consignments described as "Natural Gum" were classifiable under Customs Tariff Heading (CTH) 13012000 as "Gum Arabic" or under CTH 13019019 as "Natural Gum - Others." The appellant claimed the goods were "Gum Arabic" and sought exemption under Notification No. 96/2008. However, chemical examination reports indicated that the samples did not meet the specifications for Gum Arabic as per IS 6795-2007. The Department contended that the goods should be classified under CTH 13019019, which does not qualify for the exemption.

2. Eligibility for Customs Duty Exemption:
The appellant argued that the goods, being natural and unprocessed, should be classified under CTH 13012000 and thus be eligible for the exemption. They also contended that the chemical examiner's report was irrelevant as it only addressed food-grade Gum Arabic, which was not the imported product's intended use. However, the Tribunal noted that the import documents, including invoices and bills of lading, described the goods as "Natural Gum" without specifying "Gum Arabic." Consequently, the Tribunal upheld the Department's classification under CTH 13019019, denying the exemption.

3. Validity of Penalties Imposed:
The Tribunal examined the penalties imposed on the clearing agent, M/s Bharti Freight Forwarders Pvt. Ltd., and its Director, Anil Kumar Tiwari. The Department alleged that they colluded with the importer by presenting incorrect import documents. However, the Tribunal found no evidence of malafide intent or conscious misdeclaration by the clearing agent. The clearing agent had described the goods based on the provided import documents, and the goods were provisionally assessed pending chemical examination. The Tribunal concluded that the clearing agent and its Director did not engage in any act warranting penalties under Section 112(b) of the Customs Act, 1962.

Judgment:
The Tribunal upheld the classification of the imported goods under CTH 13019019 and denied the customs duty exemption. The appeal by the importer, M/s B.L. Goyal, was dismissed. However, the appeals by the clearing agent, M/s Bharti Freight Forwarders Pvt. Ltd., and its Director, Anil Kumar Tiwari, were allowed, and the penalties imposed on them were set aside. The Tribunal found no grounds to levy penalties on the clearing agent and its Director, as they had not engaged in any malafide actions.