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TMI Blog2022 (8) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... the submission advanced by the learned counsel for the appellant that once the order dated September 29, 2021 passed by the Commissioner (Appeals) was accepted by the competent authority on December 27, 2021, as is clear from the information made available to the appellant under the Right to Information Act, the Department cannot be permitted to take a different stand in the present appeal filed by the appellant. The order dated March 28, 2019 passed by the Principal Commissioner deserves to be set aside and is set aside - Appeal allowed. - CUSTOMS APPEAL NO. 51524 OF 2019 - FINAL ORDER NO. 50607/2022 - Dated:- 8-7-2022 - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. P V SUBBA RAO, MEMBER (TECHNICAL) Shri Piyush Kumar and Ms. Ekta Kapoor, Advocates for the Appellant Shri Nagendra Yadav, Authorized Representative for the Department ORDER JUSTICE DILIP GUPTA: M/s. Jatinder Sports, the appellant, has filed this appeal to assail the order dated March 28, 2019 passed by the Principal Commissioner (Customs), Inland Container Depot (Imports), Tughlakabad, New Delhi, the Principal Commissioner by which the demand of differential customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2005-Cus dated 22.07.2005. They stated that for instance Train Series Toys, Rail Toy Series etc. covered under sub-serial number(a), Hanging Fly Series, Toy Planes, Deformation Toys Robots etc. under sub-serial number (b), Building Blocks. Furniture Toy Series etc. under sub-serial number (c), Cartoon Toy series under sub-serial number (d), Toy Keyboard. Microphone Toys under sub- serial number (e), Magic Cubes under sub-serial number (f), Doctor Series Toys, Dresser accessories series under sub-serial number (g) and Toy Car Series. Planes Toys etc. under sub-serial number (h) of Serial No 427 of the said Notification. They also contended that the train series toys although are made of plastic yet they have an inbuilt electric motor therein and therefore, they are appropriately classifiable as electric trains and therefore are covered under serial no 427 (a). 18.1 In view of the discussion in para 14 above, the above submissions of the noticee are devoid of merits inasmuch as, all train toys are not covered under sub-serial number (a), but only electric trains with tracks, signals, are covered. Similarly in sub category (b), only assembly kits for scaled models is included and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S/D-II/ICD/TKD/Imp/1209/2021-22 dated 30.09.2021 Accepted by the Competent Authority on 17.12.2021 4. M/s. Amazing Kids Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1198/2021-22 dated 29.09.2021 Accepted by the Competent Authority on 17.12.2021 5. M/s. Dang Trading Co. Pvt. Ltd Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1202/2021-22 dated 29.09.2021 Accepted by the Competent Authority on 17.12.2021 6. M/s. Noni Toys Gifts Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1205/2021-22 dated 29.09.2021 Accepted by the Competent Authority on 17.12.2021 7. M/s. K Lal Enterprises Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1197/2021-22 dated 29.09.2021 Accepted by the Competent Authority on 27.12.2021 8. M/s. Games Toys India Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1203/2021-22 dated 29.09.2021 Accepted by the Competent Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the Department have been considered. 10. In order to examine the submissions made by learned counsel for the appellant that once the order of the Commissioner (Appeals) has been accepted by the Department, on an issue which is involved in this appeal, it would not be open to the Department to take a different view in this appeal, it is necessary to examine one such case in the matter of M/s. Ajay Impex which is at serial no. 2 of the chart contained in paragraph 6 of this order. 11. The records indicate that the adjudicating authority passed an order dated May 31, 2019 confirming the demand and rejected the contention of the appellant therein that higher abatement was correctly obtained. Paragraphs 18 and 19 of the order, which deal with this aspect, are reproduced below: 18. In the present case, owing to the nature and type of toys described at the time of import, the impugned show cause notice was issued as it appeared that the imported toys do not fall in any of the category of toys as mentioned under Sl. No. 427 of the said Notification. Now, as per above discussion and extant law, the onus was on the noticee to prove that the benefit of exemption claimed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make whole section 28 as redundant which cannot be the intention of legislature. Such provisions are there to demand and recover duty if such duty is found as short levied or short paid which is subject matter in present case. So I find that even verification by proper officer under section 17(2) does not take away such powers from the proper officers to demand and recover duty under provisions of section 28 of the Customs Act for which the foremost requirement is short levy, no levy. Short payment or no payment of duty which I find is in the present case as the importer by claiming duty exemption notification has short paid the duty by virtue of claiming exemption from duty. Also it a fact that every bills of entry are neither verified nor examined by the proper officer so it will be wrong to say that all the goods were examined 100% by the proper officer and each and every toys so imported were examined by the proper officer nor the noticce has proved this claim by producing bills of entry showing that each bill of entry, filed by the noticee, were examined 100% by the proper officer and simultaneously verified. Clearance given under section 47 by the proper officer cannot be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. On the issue of confiscation, I find that in the show cause notice it is stated that there is misdeclaration but what is the misdeclaration is not specified nor the sub-section in which such misdeclaration would fall so to this extent I find that the noticee is right and such submission that there was misdeclaration is perverse and vague therefore not acceptable. 19. In view of the discussion above, the above submissions of the noticee are devoid of merits in as much as, all train toys are not covered under sub-serial number (a), but only electric trains with tracks, signals, are covered. Similarly, in sub category (b), only assembly kits for scaled models is included and not the toy robots or planes. Toys just depicting building or furniture are not covered in sub category (c) which includes only construction sets/toys. Cartoon toys are not covered in sub category (d) which includes toys representing animals or non-human creatures. Sub category (e) includes Toy musical instruments and apparatus and parts thereof and not any plastic toy producing electronic music like Toy Keyboard., Microphone Toys. Doctor Series Toys, Dresser accessories are not found included in Sub categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entry but without elaborating how they were not eligible for benefit, already claimed and allowed. For example, toy described as Toy train has been denied benefit of entry 427(a) on the ground that it is available to electrical trains with tracks, signals etc. But, there is no evidence to establish that Toy train imported by the Appellant did not have tracks or was not electric . Similarly, the Adjudicating Authority proceeded to exclude various types from ambit of claimed entry (para 19 of the impugned order) simply based upon description of toys and without any substantial evidence in this regard. The Adjudicating Authority stated that cartoon toys are not covered by sub-category d but cartoon toys are representing non-human creatures and covered by this category. Toy Keyboard is a toy musical instrument and thus covered by category e . Thus, exclusion of imported toys from various categories without samples or test reports or any other cogent evidence is not sustainable. 5.5. I find approach of the Adjudicating Authority to be fallacious. Benefit of an exemption notification, already claimed and allowed to be appellant, has been subsequently dis-allowed withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act, the Department cannot be permitted to take a different stand in the present appeal filed by the appellant. 15. This view, finds support from the decision of the Supreme Court in Berger Paints India Ltd. vs Commissioner of Income Tax, Calcutta 2004 (165) E.L.T. 488 (S.C.) , wherein the Supreme Court observed: There is no doubt that the judgment of the Gujarat High Court in Lakhanpal National Ltd. s case is completely in favour of the assessee as it accepts the contention of the assessee in toto. It is not in dispute that the decision in Lakhanpal National Ltd. s case was not challenged by the department before this court and thus has been accepted by the department. The interpretation placed on Section 43B in Lakhanpal National Ltd. s case was directly followed by the judgment of the Bombay High Court in CIT v. Bharat Petroleum Corporation Ltd. 2001 (252 ITR 43 (Bom) and by the Madras High Court in Chemicals and Plastics India Ltd. v. CIT 2003 (260) ITR 193 (Mad.). These two judgments also appear to have been accepted by the Revenue and have not been challenged before this Court at all. This fact asserted before us by the petitioner-assessee has not been disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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