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TMI Blog2023 (8) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... of 20%. The Principal Commissioner of Customs issued a Show Cause Notice [SCN] dated 28.2.2020 which culminated in the impugned order the operative part of which is as follows: ORDER (i) I reject the claim seeking classification of the imported goods namely 'Snow Goggles' under CTH 90049090 and order that the goods be reclassified under CTH 90041000 for which Bills of Entry were filed / presented by M/s Aureole Inspecs (India) Pvt. Ltd. (ii) I hereby confirm the demand of Customs duty and IGST to the tune of Rs. 51,58,683/- (Rupees Fifty One Lakh Fifty Eight Thousand Six Hundred and Eighty Three only) on the import and clearance of 'Snow Goggles' made by M/s Aureole Inspecs (India) Pvt. Ltd. against the three Bills of Entry as listed in tabular form under para 2 of the SCN under Section 28(1) of the Customs Act, 1962. (iii) I hold that interest under Section 28AA of the Customs Act, 1962 is payable in this case by M/s Aureole Inspecs (India) Pvt. Ltd. from the due date till the duty is paid in accordance with law. (iv) I hold that the goods imported and already cleared M/s Aureole Inspecs (India) Pvt. Ltd. against the three Bills of Entry as listed in tabul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad strap slide adjustor. 3. Clause No. 5.2.2 of specification for snow Goggles:- Lens: The lens shall also be suitably coated to offer protection against effects of fog/frost. 7. Sun glasses protect the eyes from bright sunlight while Snow Goggles are meant for use in high altitudes where the risk of exposure to Ultra-violet rays is very high. The specific differences between the two are as below: GOGGLES SUNGLASSES Goggles give complete protection to eyes from the dust, water, snow, debris, etc which are present in the atmosphere Sunglass are mainly designed to protect the eyes from sunlight and UV rays present in the sunlight NATURE Goggles are close fitting glasses which cover the entire eye area along with the sides of the head also. Sunglasses are typically a pair of lenses which rests on the nose and ears of the person who is wearing them. WEIGHT Goggles are very bulky in nature and usually weight, more than sunglasses Sunglasses are very light weight and easy to wear. FOG UP Goggles usually fog up in cold weather, however anti-fogging goggles are also available. Sunglasses usually don't fog up much when compared to goggles COST Goggles are very cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported goods, they are liable to confiscation under section 111(m). 16. The appeal may, therefore, be dismissed. Findings 17. We have considered the submissions on both sides. The facts of the case are not in dispute. The appellant imported 'Snow Goggles' to supply to Indian Army as per its contractual obligation. The contract does not place any order for sun glasses nor does it use the terms 'sun glasses' and 'snow goggles' synonymously. Thus, as far as the trade parlance, i.e., knowledge of those who deal with the imported goods is concerned, the imported goods are 'Snow Goggles' and not sun glasses. The SCOPE of supply under the contract in paragraph 1.1 of the contract reads as follows: 1.1 This specification covers Qualitative an other requirements for supply of SNOW GOGGLES, Cat, Pt. No.-NIV, which are used for protection of eyes in snowy region. Thus, the goods are meant for protection of eyes in snowy region and not protection of eyes from sunlight which is the purpose of sun glasses as is common knowledge. Thus, the finding in the impugned order that the Snow Goggles are also sun glasses is not correct. The contract also lays down detailed specifications of the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he glare of the snow reflecting the light hurts the eyes. High altitudes also expose one to more UV rays. The wind and the cold conditions also hurt the eyes. The goods in question, Snow Goggles are specifically required to protect the eyes from all these. Specifically, they are not recommended for use while driving which also distinguishes them from the sun glasses. Perhaps, the only commonality between the sun glasses and the Snow Goggles is that both provide protection from sunlight and the commonality ends there. 19. In the impugned order, the Principal Commissioner stated " I am of the opinion that the Snow Goggles will become sunglass if fitted with two arms for the purpose of being mounted over the nose of a person. Therefore, I am of the opinion the Snow Goggles are nothing but Sun Glasses and merit classification under CTH 90041000." Goods should be classified and assessed to duty as they are imported and not based on what they will become if some changes are made. Therefore, the Principal Commissioner has clearly erred in classifying the imported goods on the basis of what they can become if some changes are made. 20. The relevant CTH are as follows: 9004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 54; SECTION 112. Penalty for improper importation of goods, etc.- Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or ............ shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher. 23. The reasoning in the impugned order is that since the appellant indicated a classification in the Bill of Entry and the imported goods do not match that classification, they are liable to confiscation under Section 111(m). We do not agree with this reasoning. Classification of goods is a part of the assessment. Section 2(2) of the Customs Act defines assessment as follows: (2) "assessment" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of assessment as per section 2(2). Thus, the importer (or exporter) and the proper officer are competent to classify the goods and assess the duty payable on them. The remedy against self-assessment is re-assessment by the officer [or an appeal to Commissioner (Appeals)]and the remedy against the re-assessment is an appeal to the Commissioner (Appeals) which option is available to both sides or a notice under section 28 (which is available only to the Revenue and only to recover duties not levied, not paid, short levied, short paid or erroneously refunded). 26. However, there is no separate document or procedure through which the importer can self-assess the duty on the imported goods under Section 17. All the elements necessary for assessing the duty are filled online in the Bill of Entry itself which is the entry of the goods made under section 46. Thus, the Bill of Entry has factual elements such as the nature of the goods, quality, quantity, weight, transaction value, country of origin, etc. which all need to be correctly declared and elements which are in the nature of the opinion of the importer such as classification of the goods, exemption notifications whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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