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TMI Blog2019 (10) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Customs Act, 1962. (c) I confirm demand of applicable interest on the differential Customs duty under Section 28AA of the Customs Act, 1962. (d) I order to appropriate the amount of Rs. 10,00,000/- (Rupees Ten Lakhs only paid by the importer during investigation vide cash challan No HC 904 dated 30.03.2016 against the liabilities of duty and interest. (e) I hold that the goods imported under the Bill of Entries mentioned in table above are liable for confiscation under Section 111(M) and Section111 (o) of the Customs Act, 1962, however the goods are not available for actual confiscation. (f) I impose a Penalty of Rs. 82,58,594/- (Rupees Eighty Two Lakhs Fifty Eight Thousand Five Hundred and Ninety Four Only) on M/s Srithai Superware India Pvt Ltd under Section 114A of the Customs Act, 1962. (g) I impose a Penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on M/s Srithai Superware India Pvt Ltd under Section 112(a) of the Customs Act, 1962. (h) I impose a Penalty of Rs. 1,00,000/- (Rupees One Lakh Only) on M/s Kwick Cargo Tracers and Lifters under Section 112(a) of the Customs Act, 1962." 2.1 Appellant had imported certain goods and for clearance of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that if the goods can be classified under two headings then the assessee could have chosen the heading which was more beneficial to them [Minwool Rock Fibres Ltd {2012 (278) ELT 581 (SC)]; * They have not made any mis-declaration in respect of description, quantity and value, even if the classification as made by them or exemption claimed by them is found erroneous then the same is on account bonafide belief or error and hence cannot be made the ground for invoking extended period as provided for under Section 28 of the Customs Act, 1962, or for demanding interest under section 28AA ibid; * Hon'ble Supreme Court has univocally laid down the law in this respect in case of Northern Plastic [1998 (101) ELT 549 9SC)], Jaiprakash Industries Ltd [2002 (146) ELT 481 (SC)] stating that such bonafide mistakes cannot be mis declaration with the intention to evade payment of duty; * Since the charge of mis-declaration cannot be sustained invoking extended period as provided by Section 28(4) of Customs Act is not justified and also the penalty under Section 114A ibid; * Also in absence of any misdeclaration in respect of quantity, description and value impugned order holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itchenware 39241010 --- Insulated ware 39241090 --- Other 392490 - Other 39249010 --- Toilet ware 39249020 --- Insulated ware 39249090 --- Other 4.2.2 From the scheme of the tariff entries it is quite evident that Tableware and Kitchenware, have been specifically mentioned and classified under heading 392410. While other household articles and hygienic or toilet articles, of plastics, have been grouped together and put under heading 392490, under description of others. It is general principle of classification that specific entry should be preferred over the general entry. Rule 3(a) of General Rules of Interpretation of Tariff read as follows: "3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 28.10.2015, Shri Anil Garg, the Manager (Accounts) of the importer has stated that (i) the importer is engaged in trading, import and distribution of Tableware and Kitchenware and other household articles of melamine and plastic mainly imported from Thailand. (ii) They were using the same classification CTH 3924 10 90 in the previous years until the overseas supplier provided the Certificate of Origin and informed that there is some preferential trade agreement between India and Thailand for import of melamine and the products are covered and classified under CTH 3924 90 90. (iii) From the definition of Tableware and Kitchenware, he agreed that the goods were wrongly classified under CTH 39249090. 32. Further, in his statement dated 14.01.2016, Shri Rakesh Singh, the Managing Director of the importer has stated that (i) the importer mainly imports Tableware and Kitchenware and other household articles of melamine and plastic mainly from Thailand. (ii) the importer consignments were also having tableware and kitchenware products. (iii) From the definition of Tableware and Kitchenware, he agreed that the goods were wrongly classified under CTH 39249090, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 - 31.12.2013) 8 6 (from 01.01.2014) 7 From the plain reading of the notification it is evident that the said exemption is available only in respect of the goods classifiable under tariff heading 392490 and not under heading 392410. Hence the order of Commissioner denying the benefit of exemption under this notification cannot be faulted with. 4.3 For invoking extended period of limitation as provided for by Section 28(4) of the Customs Act, 1962, Commissioner has in his order recorded as follows: "38. Section 17 of the Customs Act, 1962, as amended vide Finance Act, 2011, introduced the concept of 'Self- Assessment' in Customs. Section 17 of the Customs Act, amended with effect from 8.4.2011, provides for self-assessment of duty on imported goods by the importer himself. Thus, under self-assessment the importer has to ensure that he declares the correct classification, applicable rate of duty, value, benefit of exemption notifications claimed, if any, in respect of the imported goods while presenting Bill of Entry. Thus, it is pertinent to bring this here that with the introduction of selfassessment by amendments to Section 17, since April. 2011, the onus has shifte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods can be assessed as per the declared CTH. After introduction of 'Self Assessment' in Customs, the onus to declare correctly and truthfully rests on the importer who files the Bills of Entry, and the role of assessing officer is to verify the veracity of these declarations. The importer has mentioned the description of goods as 'MELAMINEWARES' and has conveniently ignored the true description and nature of the goods which were 'Tableware j Kitchenware'. In the absence of true description of goods, it is not possible for assessing officer to raise any doubt on the goods. It is the Special Investigation and Intelligence Branch of the Custom House, who on the basis of their generated intelligence came to know about the misdeclaration. 41.4 They have relied on the judgment in the case of Northern Plastic Ltd. v. CC - 1998 (101) ELT 549 (SC) - where it is held that - Description of goods given correctly and fully in bill of entry, classification declaration and laying claim to some exemption, whether admissible or not, is a matter of belief of assessee and does not amount to mis-declaration. 41.5 It is an admitted fact that the importer themselves we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has been found to be wrong by the Collector and CEGAT on the ground that there was a separate exemption notification in respect of jumbo rolls for Cinematographic Films. While dealing with such a claim in respect of payment of customs duty we have already observed that the declaration was in the nature of a claim made on the basis of the belief entertained by the appellant and therefore, cannot be said to be a misdeclaration as contemplated by Section 111(m) of the Customs Act. As the appellant had given full and correct particulars as regards the nature and size of the goods, it is difficult to believe that it had referred to the wrong exemption notification with any dishonest intention of evading proper payment of countervailing duty." 5.5 When Commissioner has himself in the para 33 of his order for holding the classification under the heading 392410, referred to description made in the Bill of Entries/ invoices he cannot be justified in holding the charge of misdeclaration against appellants. For that reason we are of the view that by giving the correct description on the documents relating to import clearance appellants have discharge the burden of making correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been so short levied or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty has not been levied or has been short levied or has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words "six months" the words "five years" were substituted. (2) The Assistant Collector of Customs after considering the representation, if any, made by the person on whom notice is served under sub-section (1) shall determine the amount of duty due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) For the purposes of sub-section (1), the expression "relevant date" means - (a) in a case where duty is not levied, the date on which the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation read as follows: (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54; (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer; 4.9 From plain reading of the said clauses of Section 111, we do not find that these sub clauses, are applicable to cases where the classification of claim of exemption is found to be erroneous. The fact that the goods correspond to declaration in respect of the description and value is sufficient to take the imported goods away from the application of these two clauses. Hence the order holding goods liable for confiscation and imposition of penalty under Section 112(a) cannot be sustained. 4.10 Since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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