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TMI Blog2019 (10) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty (@15%) have been paid in full, then the proceeding in respect of such person to whom notice is issued under sub-section (4) shall be deemed to be conclusive. In view of the provisions of sub-section (5), (6) read with sub-section (4) of Section 28, the proceedings stood concluded on deposit of differential duty alongwith interest and 15% penalty - Appeal allowed - decided in favor of appellant. - Customs Appeal No. 50052 of 2019 - FINAL ORDER NO. 51356/2019 - Dated:- 22-10-2019 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. C. L. MAHAR, MEMBER (TECHNICAL) Shri G. Natarajan, Shri Kartik Jindal Ms. Stuti Karwal, Advocates for the appellant Shri Sunil Kumar, Authorised Representative for the respondent ORDER ANIL CHOUDHARY: M/s Hershey India Private Limited, Plot No. 05, New Industrial Area, Mandideep, Distt Raisen (M.P.) (hereinafter referred to as the appellant) is engaged in manufacturing of fruit pulp and other milk based drink beverages including Jumpin, Sofit etc. The appellant imported Aseptic Packaging Material for packing the material for their m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l; bleached‟ and unbleached‟ and the subject goods being bleached were classifiable under chapter heading 48115110, applicable for Bleached Aseptic Packaging Material and not entitled for the benefit of concessional CVD. It is humbly submitted that for the purposes of the operation and usage of the subject goods by the appellant, there was no distinction between bleached and unbleached materials and because the difference could not be ascertained through visual examination, appellant adopted the undisputed classification 48115910, as provided by the Tetra Pak for its products and on the said basis availed the concessional benefit. 7. The appellant made various imports (about 30) of Aseptic Packaging Material from Inland Container Depot (ICD), Mandideep through Jawaharlal Nehru Customs House (JNCH), NhavaSheva Port. 8. That the Custom Department sought clarification from the appellant with respect to classification of product under CTH 4811 5910. The appellant vide letter dated 16.1.2017 informed the department that the goods were rightly classifiable under the said heading and undertook to pay the differential duty if it was found other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penal consequences, they paid this reduced penalty, as provided for in the statute, in a worst case scenario. That is why they have informed the department that the payment of penalty was under protest. 11. The appellant duly acknowledged their mistake, addressed all correspondences from the Department and paid the differential custom duty alongwith interest. The said misunderstanding arose from precedent classification by appellant‟s suppliers and as adopted by the appellant himself. 12. Thereafter a show cause notice No. 01/COMMR/CUS/ICD-MDP/2017 dated 15.06.2017 was issued to the appellant alleging of wilfully mis-declaring and wrongly classifying the goods under Customs Tariff heading 48115910 and not under 48115110, thereby evading proper payment of custom duties. The notice also proposed to demand differential customs duties of ₹ 1,59,24,081/- with respect to 30 bills of entries alongwith interest under Section 28 AA of the Customs Act, 1962 and proposing to impose penalty under Section 112(a) and 114AA of the Act. Further, it proposed to appropriate the differential custom duties amount paid by the appellant to the tune of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant have deposited the differential duty/ CVD alongwith interest, hence, the issue may be treated as closed. Learned Counsel also draw our attention to their letter dated 16.01.2017 addressed to the Assistant Commissioner of Customs wherein they have categorically stated that they are importing Aseptic Packaging Material classified under HSN code 48115910 instead of 4811 5110 and were claiming benefit of Notification No. 12/2012, Sl. No. 169. Further, stating that according to them they have rightly classified under ITC 4811 5910. Further, undertaking to pay any differential duty and later on it is found that there classification is not proper by the Department. 15. It is further urged that in the aforementioned facts and circumstances, the issue of show cause notice is bad and there is no serious allegation of any malafide on the part of the appellant, and except that the classification adopted by appellant created an ambiguity in view of the certificate of origin, classifying the goods under HS code 4811519100. It is further urged that only when the Revenue made enquiry and appellant have made further inquiry from their supplier/ manufacturer based at Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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