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TMI Blog2020 (9) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... RITC 56079090 for availing MEIS benefit of 5%, whereas, as per the ITC (HS) Code specified by DGFT, the Ropes made of Polyethylene or Polypropylene should be classifiable under RITC 56074900, attracting MEIS benefit of 2%. Further, in respect of two more shipping Bills being Nos. 7289261 and 7289281 both dated 12.07.2017, the show cause notice had relied upon the test report furnished by the DYCC, JNCH proposing classification of goods under heading 56074900 on the ground that composition of samples drawn mainly comprised of Polypropylene. Accordingly, the show cause notice alleged that the appellant had misclassified the goods in order to avail undue MEIS benefit available to the goods of heading 56079090. The issues arising out of the show cause notice was adjudicated vide the impugned order dated 20.11.2018. The learned adjudicating authority has classified the goods exported during the period April' 2015 to Dec' 2017 under Chapter sub-heading 56074900. He has held that no MEIS benefit is available till August'2016 and from September '2016, MEIS benefit of 2% is available to the Appellant. Accordingly, the impugned order has held that necessary communication is required to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any runs its day to day business affairs were exonerated from the proposed penal action, the appellant cannot be made to suffer as an artificial legal person by taking recourse to Section 28AAA of the Act. 4.2 The learned Advocate further submitted that upon finalization of Shipping Bills and issuance of Let Export Order under Section 51 of the Act, the appropriate course of action left to the Department was for reviewing the assessment order by the competent officer(s) under Section 129D(2) of the Act and thereafter for filing of appeal against the assessed Shipping Bills under Section 128 of the Act. He submitted that the Department had not complied with the said statutory mandates and as such, the issue arising out of exportation of subject goods covered under the assessed Shipping Bills have attained finality and cannot be re-opened by resorting to commencement of fresh adjudication proceedings. Thus, he submitted that the measures taken by the Department for confirmation of adjudged duty demand under Section 28AAA ibid is ex facie illegal and arbitrary. The learned Advocate has relied upon the judgment of Hon'ble Supreme Court in the case of Shabina Abraham and Ors. Vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudged demands. The learned AR appearing for Revenue has not particularly expressed any reservations regarding consideration of the said substantial question of law at this stage. Hence, the preliminary submissions made by the learned Advocate in respect of the new plea raised before the Tribunal is considered. Therefore, we proceed to decide the main appeal on the basis of the grounds of appeal urged in the appeal memorandum, including the additional grounds raised during the course of hearing of appeal. 7. The impugned order in paragraph 5 at the beginning has recorded the following observations of the learned adjudicating authority: "The crux of the dispute is correct classification of ropes made of PP and Polyester. The MEIS benefits available and all other issues are ancillary to the determination of correct classification." 8. It is an admitted fact on record that in compliance of Section 50 ibid, the appellant had submitted all the requisite particulars/information for assessment and ascertainment of the duty liability, if any, in respect of the Shipping Bills, which were accepted by the proper officer of Customs and the appellant was permitted by an order under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant period 2015-2017, in permitting exportation of goods including classification and other aspects as per Section 51 ibid were considered as legal and proper by the Commissioner of Customs. This is evident from the fact that no specific order was passed by such competent authority in directing the officer subordinate to him for filing of appeal before the Commissioner (Appeals), as mandated in sub-section (2) of Section 129D of the Act. In fact, the materials available on records suggest that no appeals were filed by the Department against the assessment orders passed on the Shipping Bills before the Commissioner (Appeals) under Section 128 of the Act. Hence, the issue of classification and other facets concerning exportation of subject goods covered under the already assessed Shipping Bills was attained finality and any issues arising out of finalisation of such Shipping Bills cannot be questioned or agitated by the Department subsequently by initiating show cause proceedings against the exporter, the appellant herein. In other words, unless and until the order passed under Section 51 of the Act is dealt with in the manner prescribed by the appellate authorities, such order sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is squarely applicable to the facts of the present case inasmuch as legality or propriety of a statutory order cannot be questioned or disturbed subsequently by passing an order on the issue, which has already been considered and dealt with on the previous occasion, while passing the order under Section 51 of the Act. Further, the issue with regard to filing of appeal against an order passed under the statute has also been dealt with by the Hon'ble Supreme Court in various occasions. In the case of Shabina Abraham (supra), the Hon'ble Supreme Court have held that "in interpreting a taxing statute, equitable consideration are entirely out of place and it cannot be interpreted on presumptions or assumptions; the taxing statute is to be interpreted in the light of what is expressly expressed and provisions cannot be imported so as to supply any assumed deficiency." In the case of M.A. Merchant (supra), the Hon'ble Apex Court have ruled that "if an assessment has already been made and completed, the assessee cannot be subjected to re-assessment unless the statute permits that to be done." Such view was also endorsed by the Hon'ble Apex Court in the case of Vatika Town ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2003 (151) ELT 254 (S.C.) have held that if the license issuing authority i.e. DGFT has not questioned the veracity of the transactions undertaken under the license, the customs authorities cannot refuse exemption on an allegation that there was any misrepresentation. It has also been held that if there was any misrepresentation, then it was the licensing authority which had to take steps to cancel the license. In the case in hand, the adjudicating authority has only referred to the DGFT Public Notice No. 30/2015-2020 dated 08.09.2016 to hypothetically conclude without any corroboration that the actual user condition has not been fulfilled and accordingly, the appellant is liable to pay the Customs duty. For arriving at such conclusion, the learned adjudicating authority has not discussed the issue with the licensing authorities, who are competent under the Licensing Policy to discover such wrongdoing, if any. Hence, it is evident that the Department has not brought on any credible evidence to prove that the appellant had indulged into fraudulent activities with the intent to defraud the Government revenue. In this context, the Hon'ble Supreme Court in the case of Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be assigned with some task of performance or the power may be delegated upon certain officers of the company as per the resolution passed and approved in the meeting of the Board of Directors. In this case, while investigating into the mater, the Department had recorded statements from Shri Rajesh Pandey, Director of the appellant on 27.09.2017 and 27.12.2017 pursuant to summons issued under Section 108 of the Act. In the said statements, he had inter alia stated that he decides the Central Excise/Customs classification or RITC of export gods; the reason for change in classification/RITC of exportable goods; technical facets of the goods manufactured and exported by the appellant etc. Further, in the statement dated 07.11.2017, the CEO of the appellant company had also endorsed the statement of the Director furnished before the Department. The modus operandi adopted for conducting the business of the appellant company clearly depicts that the director/senior authorised officers in their individual capacity, on behalf of the company determine the mode and the manner for carrying out the business activities inasmuch as the company as an artificial person cannot think, act or perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it is also noticed that the adjudicating authority has not recorded any findings on the communication dated 28.12.2017 of the jurisdictional Assistant Commissioner of Central Excise, addressed to the Deputy Commissioner of Customs, Preventive, opining that the sample of goods drawn should be classifiable under CTH 56079090. Thus, it is evident that the integral part and parcel of the principles of natural justice has been violated in this case inasmuch as reasons are the soul of any judicial order and good and proper reasoning make its body strong, which admittedly is absent in the present case. Accordingly, we are of the considered view that the matter should be remanded to the original authority for grant of opportunity to the appellant for cross examining the chemical examiner and thereafter to address the issue in a just and fair manner. 17. In view of the foregoing discussions and analysis, we set aside the impugned order and allow the appeal, in so far as it has changed the classification of exported goods from CTH 56079090 to CTH 56074900, resulting in confirmation of duty demand along with interest and imposition of penalty on the appellant. As regards confiscation of g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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