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TMI Blog2024 (1) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, it is found that the assessing officers were well aware of the classification and they allowed the said classification without any objection. The respondent did not raise any objection to the adopted classification even though the description of the export goods was correctly declared. Further, it is not only the appellant who has followed this classification with regard to impugned goods rather other exporters were also adopting the same classification which was followed at Tuticorin port during the period from April 2015 to October 2020. The Commissioner in the impugned order has held that the appellants are not directly benefited by their contravention hence there is no mens rea on the part of the appellant and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 48192010. Incidentally, classification 36050090 attracts 2% higher rate of MEIS. The excess availment was found by the scrutiny of the data analytics of MEIS scheme by the system. On the allegation that the appellant has colluded with the exporter and filed the shipping bill with incorrect classification intentionally, a show cause notice dt. 2.9.2022 was issued alleging violation of Regulation 10 (d) and 10(e) of Customs Brokers Licensing Regulations 2018 to show cause as to why (i) Customs Brokers Licensing should not be revoked (ii) Security deposit should not be forfeited and (iii) penalty should not be imposed under Regulation 18 (1) of CBLR 2018. Appellant filed detailed reply dt. 27.09.2022 to the SCN and thereafter Inquiry Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 since 2005. Hence there was no need for giving any advice to the exporter under Regulation 10 (d) and for the same reason there was no failure to exercise due diligence in imparting correct information to their client under Regulation 10 (e). He further submits that in the same Custom House the other exporters had also adopted the same CTH and the assessment officers who processed the shipping bills did not raise any objection relating to the CTH adopted at the time of export and there is no allegation that there was any misdeclaration of description of the export goods. Therefore, in view of these, appellant could not be held to have violated Regulation 10 (d) and 10 (e) and therefore the penalty imposed on the appellant is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing to bring to the knowledge of the of Deputy Commissioner / Asst. Commissioner of Customs and consequently, there was no question of contravention of provision of Regulation 10 (d) of CBLR 2018. He also referred to the Advisory No.01/2022 dt. 29.12.2002 issued by the Chief Commissioner of Customs, Mumbai wherein it has been clearly advised that the officers engaged in the show cause notice issued on the basis of audit should be advised not to invoke violation of provisions of CBLR, 2018 and make the Customs Broker co-noticee in cases involving interpretative disputes regarding classification, availment of benefits of the exemption notification and valuation. He further submits that in the impugned order the Commissioner in para-31 has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the description of the export goods was correctly declared. Further, I find that it is not only the appellant who has followed this classification with regard to impugned goods rather other exporters were also adopting the same classification which was followed at Tuticorin port during the period from April 2015 to October 2020. Further, I find that even DGFT authorities who are in charge of the Foreign Trade Policy have also allowed the MEIS benefits which also proves that there was nothing wrong in the classification of the impugned goods. Further, I find that learned Commissioner in the impugned order has not followed Advisory No.1/2002 dt. 29.12.2002 issued by the Chief Commissioner of Customs, Mumbai advising the Customs officers no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of lesser rate of duty. Consequently, confiscation and redemption fine as well penalty is set aside 9. Similarly in the case of CCE Visakhapatnam Vs Smithkline Beecham Consumer Health Care Ltd. reported in 2004 (167) ELT 225 (Tri.-Bang.), the Tribunal held in para-3 as under : 3. We have perused the records and heard both sides. The learned Counsel representing the assessee submits that the issue is no more res integra. He relies on the decision of this Tribunal in the case of S. Narendra Kumar Co. v. CCE, Mumbai-II - 2003 (156) E.L.T. 1001 wherein the Tribunal held that no penalty is imposable for filing incorrect classification. The learned Counsel has also referred to many other decisions to the same effect. A classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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