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TMI Blog2021 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 06.10.2005 under Chapter sub-head 3824.90 was not challenged further by the Assessee. The Revenue had challenged the observations pertaining to mis-description in Appeal No. C-02/06 before the Tribunal but that appeal was also dismissed on 13.12.2016. The classification of the product imported is thus under Chapter sub-head 3824.90 which does not require re-examination. Mis-description or suppression in the matter of classification - HELD THAT:- The Tribunal (Court No.1) while passing this order dated 13.12.2016 found that the first appellate Court had relied upon the certificate issued by the supplier of the goods to come to the conclusion that the charge of mis- declaration did not arise. This order dated 13.12.2016 passed in Appeal No. C-02/06 has attained finality between the parties. It is also relevant to note that the allegation of mis-declaration is based on the same material and it is also not in dispute that the Assessee had declared the said goods as being coated with stearic acid 2T SA. The Tribunal in its impugned order has not assigned any independent reason for upholding the show-cause notice dated 30.01.2004. Once it is found that there was absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a result, the show cause notice dated 30.01.2004 proposing the goods covered by bills of entry at serial numbers 1 to 49 were held liable for confiscation under Section 111 (m) of the Act of 1962 for suppression of facts, differential duty on the goods cleared under Section 28 of the Act of 1962, imposition of penalty under Section 112 (b) of the Act of 1962 along with interest at appropriate rate under Section 28 AB of the Act of 1962. 4. The facts in brief giving rise to the present proceedings are that it is the case of the Assessee that it is a Company incorporated under the Companies Act, 1956 and is engaged in the manufacture of master batches that fall under Chapter 39 of the Central Excise Tariff. Calcium Carbonate is one of the items used in the manufacture of the master batches. Since 1997 the Assessee has been importing Calcium Carbonate and the same was being classified and assessed to custom duty under Heading No.25.30 of the Customs Tariff as mineral substance not elsewhere specified or included . In proceedings initiated by the Revenue for re-classification of Calcium Carbonate as imported, the same was classified under the Heading 25.30. The earlier proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppress the description of the said product. According to him since 13.07.1999 the goods were described as surface coated by the Assessee which fact was noticed by the Deputy Commissioner in his earlier order dated 15.10.2004. This relevant aspect was ignored by the Tribunal. According to him while it was the duty of the Assessee to appropriately describe the goods imported, the authorities were required to classify the same appropriately. Classification, if any, mentioned by the Assessee would not be relevant and it was the description as made by the Assessee that was relevant. He then submitted that the observations as made in the earlier order dated 20.05.2005 by the Commissioner of Central Excise as regards the description in the bill of entry being in conformity with the description in the invoices of the foreign supplier was ignored by the Tribunal. When the show cause notice dated 30.01.2004 was under adjudication, the earlier order dated 22.07.2007 passed by the Commissioner, Central Excise was holding the field. In absence of any contrary classification by the Assessee, there was no reason to proceed against the Assessee. It was not the case of Revenue that the goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d we have given due consideration to the respective submissions. Before considering the challenge to the impugned order passed by the Tribunal on 13.12.2016, it would be necessary to refer to the earlier proceedings between the parties with regard to import of the very same goods by the Assessee. The Assessee had imported 84 metric tons of Calcium Carbonate vide invoice no.853507 dated 18.06.1997. In the bills of entry the goods were classified under Customs Tariff Heading No.2530.90. The Assistant Commissioner by his order dated 19/20.12.1997 directed the said goods to be classified under the Heading 2836.50. This order was challenged by the Assessee before the Commissioner of Central Excise and by its order dated 22.07.2007 it was held by the Commissioner that the goods were liable to be classified under Chapter 25 of CTA 1975. The order passed by the Assistant Commissioner was accordingly set aside. The record indicates that till the year 2003 the goods were being assessed under Chapter 25. In a subsequent bill of entry with regard to 126 metric tons of the material in question, the same was described as naturally occurring mineral Calcium Carbonate 2T SA . The Customs Tariff H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of suppression of facts by the Assessee. This adjudication gave rise to appeals being preferred by the Assessee as well as by the Revenue being Appeal Nos. C/499 and 620/2004. Before the Tribunal, the Assessee did not contest the classification as made under sub-head 3824.90 and on that count its appeal was dismissed. The appeal preferred by the Revenue against setting aside of the amount of fine and penalty was also dismissed by the Tribunal on 22.02.2005 after holding that since the case related to classification, it was difficult to impute any wilful intention on the part of the Assessee of any mis-representation or suppression. As stated above Customs Appeal No.1 of 2006 preferred by the Revenue against this order was withdrawn on 04.07.2017, albeit for the reason that the tax effect was lower than the prescribed limit. 9. In the aforesaid backdrop, if the challenge to the order of the Tribunal dated 13.12.2016 in Appeal No. C/723/04 passed by the CESTAT, Court No.II impugned in this appeal is considered, it is seen that the order passed by the Tribunal in Appeal Nos. C/499 and 620/2004 on 22.02.2005 as well as the order passed by the Tribunal in Appeal No. C/02/06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the first appellate Court as regards absence of mis-declaration on the part of the importer/Assessee came to be dismissed. The Tribunal (Court No.1) while passing this order dated 13.12.2016 found that the first appellate Court had relied upon the certificate issued by the supplier of the goods to come to the conclusion that the charge of mis- declaration did not arise. This order dated 13.12.2016 passed in Appeal No. C-02/06 has attained finality between the parties. It is also relevant to note that the allegation of mis-declaration is based on the same material and it is also not in dispute that the Assessee had declared the said goods as being coated with stearic acid 2T SA. The Tribunal in its impugned order has not assigned any independent reason for upholding the show-cause notice dated 30.01.2004. 11. Coming to the contention raised by the Assessee that there was a revenue neutral situation in hand and for which purpose various decisions were relied upon, it is seen that the Tribunal has failed to consider this aspect of the matter. The learned Senior Advocate for the Assessee is justified in relying upon the decision in Nirlon Limited (supra) for that purpose wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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