9911796707
TMI Blog1993 (3) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... he denial of cross-examination of the Deputy Chief Chemist in the adjudication proceedings were raised, we can decide the present appeal on another contention without having to go into the merits of the matter. The contention is that while alleging mis-declaration of goods attracting the liability of confiscation under Section 111(m) of the Customs Act, 1962, the authorities did not indicate/ in the show cause notices, dated 9th April 1991 and 9th May 1991, the sub-heading under which they proposed to classify the goods. The relevant portions of the show cause notices are as under :- Show cause notice, dated 9th April 1991 Whereas it appears from the Test Reports received from the Dy. Chief Chemist and the description/markings found on the drums that M/s. Patel Coatings Ind. Ltd. have misdeclared the description of the impugned goods imported by them with a view to evade payment of Customs duty leviable on the goods imported by them and also with a view to escape the provisions of ITC policy relating to requirement of the import licences for the purpose of import of such items. The duty leviable on the item under consideration is much higher than what has been claimed by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as on the (one) hand it alleges that our clients had allegedly mis-declared the goods and on the other hand it does not set out the classification of the goods as per the Department. The vagueness of the show cause notice makes it impossible for our clients to specifically reply to the same. (Emphasis added) 4. Shri Arun Mehta, the learned Counsel, referred to the decision of the Bombay High Court in the case of Wimco Limited v. Union of India Another [1980 (6) E.L.T. 235] and the decisions of the Tribunal in the case of Korula Rubber Co. Pvt. Ltd. v. Collector of Central Excise, Bombay [1987 (32) E.L.T 216] and Srikanta Haldar v. Collector of Central Excise [1991 (53) E.L.T. 425], on the question that the adjudicating authority could not travel beyond the allegations, contained in the show cause notice, and submitted that in the light of these decisions, it was necessary to indicate the proposed classification of the goods in the notice itself so that the appellants could have proper opportunity of meeting the case proposed against them. 5. Smt. Ananya Ray, the learned SDR, on the other hand, relied on the decision of the Tribunal in the case of Hindustan Equipment Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emist, Bombay for chemical analysis and test. ..... Whereas it appears from the test report received from the Dy. Chief Chemist and the description/marking found on the drums that M/s. Patels Coatings Ind. (P.) Ltd. have mis-declared the description of the impugned goods of assessable value of Rs. 68,652/- imported by them, with a view to evade payment of customs duty leviable on the goods imported by them. The actual rate of duty applicable on the goods is 100 (Basic) + 50% (Auxiliary) + 40% CVD + 5% of CVD. The total duty is Rs. 175572/- while admitted duty by the party is Rs. 11164/-. Therefore it appears that party has tried to evade payment of Customs duty equivalent to Rs. 163708/- by way of mis-declaration of goods." 8. As will be seen from the above, the authorities did not indicate the proposed classification of the goods although they indicated the rate of duty which they proposed to levy. The arguments which were made in the two cases being similar, we consider that by merely indicating the rate of duty, the appellants could not have met the charge. The following portion from the impugned order makes the position very clear :- The Ld. Advocate initially had reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed orders are set aside and the appeal are allowed by remand. 11. [Assent per : G.R Agarwal, Member (J)]. - After having the advantage of going through the erudite Order prepared by my learned brother, Shri N.K. Bajpai, I would like to add as follows :- 11.1 A. No. C/2126/91-C - In this case the appellants claimed the classification of the imported goods, namely, Cellulose Acetate Ester (Vinyl Resin Solution-Powder-CP-50) and Cellulose Acetate Ester (Vinyl Resin solution- solid BA-60), under sub-heading 3904.90 which on test, according to the Department, found to be Cellulose Acetate Promionate type of resin and Acrylate Copolymer. Consequently, a Show Cause Notice was issued to the appellants alleging that they have misdeclared the description of the impugned goods with a view to evade the payment of customs duty leviable on the goods imported by them and also with a view to escape the provisions of ITC policy, adding that the duty leviable on the item under consideration is much higher than what was claimed by the party. The appellants contested the Show Cause Notice and in paragraph seven of their written submissions dated 29th May, 1991 specifically submitted that The Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion fine and the amount of personal penalty. Leaving the question of correct classification and the appropriate duty in abeyance and deciding the question of mis-declaration and ITC violation in isolation not only violates the spirit of the law but causes harassment to the importers and also multiplicity of proceedings. It is in this background, that the case of Hindustan Equipment Engg. Co. v. Collector of Customs [1988 (37) E.L.T. 146], is distinguishable on the facts of the case. In that case there was importation of a consignment of 12 cases of Synchroniser Cones and the importer presented the licence which stood in the name of M/s. Krishna Co. for clearance. However, from the correspondence on the record, the-Department tentatively formed an opinion that although the importer had declared that no indenting agent s commission is payable, the price of US $ 3.69 CIF per piece is subject to M/s. Krishna Co. s receiving the commission of US 20 Cents per piece and further that the subject goods were not covered under the licence produced by the importer therein. As a sequel thereof, a Show Cause Notice was issued to the importer calling upon them to show cause as to why the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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