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TMI Blog2018 (11) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the clearance and the same was found as per the declaration, no allegation of suppression of fact can be made against the appellant - It is also fact that the department has not appealed against the assessment order which was done at the time of clearance of goods by filing the bills of entry. As no appeal was filed against the assessed bill of entry, the same cannot be reopened after period of more than three years. Penalty do not sustain - appeal allowed - decided in favor of appellant. - C/18/2009-DB - FO/A/76867/2018 - Dated:- 15-6-2018 - Mr. P.K. Choudhary, Member (Judicial) and Mr. Bijay Kumar, Member (Technical) None - for the appellant Shri S.K. Naskar, AC (AR) - for the respondent ORDER Per Bijay Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 410 751 336 $ 1844.10 2. 0423/IMP/Cus/CBD/04 dated 29.9.04 Wind Jacket Kids Wind-Jacket $1.00 $0.75 566 601 $1016.75 3. 0341/IMP/Cus/CBD/04 dated 30.8.04 Wind Jacket Kids wind-Jacket $1.00 $0.75 577 1495 $1678.25 4. 0342/IMP/Cus/CBD/04 dated 30.8.04 Wind Jacket Kids wind-Jacket $1.00 $0.75 866 236 $1043 5. 0515/IMP/Cus/CBD/04 dated 3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34114/- ($46.10) 34843/- 10403/- 321411/- 311008/- 6. 21957/- ($46.10) 22426/- 6530/- 188275/- 181745/- Total Rs.81453/- Rs.26,50,271/- Rs.25,68,818/- After the assessment and clearance of goods by the Customs, a show cause notice was issued to the appellant vide F. No. VIII(10)6/Cus./Adj./Audit/2005 dated 24.4.2007 asking them as to why the imported consignment should not have been re-assessed under Tariff 6201.33.00 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were made of the other textile material than cotton or manmade fibres, they were covered either under Heading 6201.99 or under Heading 6202. The contention of the adjudicating authority that the wind jacket and wind cheater imported by the appellant is classifiable under Tariff Heading No. 6204.37.00 is wrong as the woven fabrics such as the jackets were made of other textile material. The said consignment was supported by the commercial invoice and the same was physical examination by the Custom officers. It was further submitted by the ld. Advocate that in the order-in-original, it is stated that the goods imported by the appellant vide the various bills of entries are meant for women s / girls . In support of that the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to adduce any evidence to the fact that the wind cheaters and jackets was meant for women or girls. Without having the tangible evidence in the show cause notice to that effect the inference drawn in the show cause notice to that effect is without any basis and therefore legally not sustainable. It was also stated by the ld. Advocate that the adjudicating authority has passed the impugned order without following the provisions of sub-section 2 of Section 129 D of the Customs Act. It is well settled principle that the order passed on the bills of entry is appealable order and therefore, without setting aside the same in review proceeding, the demand of duty and imposition of penalty is not permissible. In this regard, ld. Advocate relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garments during the period from 30.8.2004 to 4.11.2004 declaring the goods claiming classification thereof under specific tariff heading and the goods were duly examined and found to be as per the declaration and appropriate duty also was paid and the goods were allowed to be cleared. The show cause notice was issued to the importer on 20.7.2007 alleging the suppression on the ground that the appellant has not declared the full description of the readymade garment. The contention of the appellant is that the invoice covering the imported goods were declared as the readymade garment, wind cheater for boys and girls under the appropriate classification. It was the opinion of the Revenue that the readymade garments i.e jacket and girls jacket ..... X X X X Extracts X X X X X X X X Extracts X X X X
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