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TMI Blog2024 (2) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1975. Thus mentioning of the description in detail and tariff classification of the imported goods is one of the important requirement in the declaration to be made under section 46 ibid. From the facts of the case, and the findings recorded by the learned Commissioner of Customs in paragraph 31.5 of impugned order, it clearly emerges that Shri Aakash Thakkar, had stated that the customs tariff heading declared in the bill of entry was decided by the importer and he followed the importers instructions. Further, in the impugned B/E, the CB and importer had sought for examination of the goods on First Check basis , which indicates that the goods are required to be firstly examined by customs authorities before assessment of the customs duty and for compliance with other requirements applicable thereon - responsibility for proper declaration of the goods lies with the importer and having sought for examination of the goods before assessment, there was no element of mis-declaration on the part of customs broker and the employee Shri Aakash Thakkar attracting imposition of penalty under Section 112(a) ibid. Further, it is found that there is apparent contradiction in the stand taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by issue of SCN dated 29.07.2021. In adjudication of the said show cause notice, the learned Commissioner of Customs had discussed the role of the appellant and had imposed penalty of Rs.10,000/- under Section 112(a) of the Customs Act, 1962 in respect of the above import consignment and had also imposed penalty of Rs.50,000/- on the appellant under Section 112(a) ibid, in respect of the past consignments involving 16 B/Es. Feeling aggrieved with the above order, the appellant had filed this appeal before the Tribunal. 3. Heard both sides and perused the records of the case. 4. In the impugned order, the learned Commissioner of Customs had imposed penalty on the appellant under Section 112(a) of the Customs Act, 1962 on the basis of his findings that Shri Aakash Thakkar, being an employee of customs broker should have been aware of the proper classification of the imported goods and should have advised the importer M/s Viranis Impex, instead of following the importers instructions for classification of the goods. In this regard, I find that the provision for filing of a declaration for import of goods is contained under section 46 ibid, which is extracted as below: "Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa." From the plain reading of above legal provisions, it transpires that in order to determine the appropriate duties of customs payable on any imported goods, an importer is required to file a Bill of Entry (B/E) giving all required particulars of such imported goods for assessment to duty. It is also to be noted that in terms of definition of the term 'assessment' provided under Section 2(2) ibid, determination of duty liability of imported goods has to be determined in accordance with the tariff classification of such goods in terms of Customs Tariff Act, 1975. Thus mentioning of the description in detail and tariff classification of the imported goods is one of the important requirement in the declaration to be made under section 46 ibid. 5. From the facts of the case, and the findings recorded by the learned Commissioner of Customs in paragraph 31.5 of impugned order, it clearly emerges that Shri Aakash Thakkar, had stated that the customs tariff heading declared in the bill of entry was deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to CTH 2403 1990 which covers Other Tobacco Products having Brand Names. Further, not only in the present case, same practice was adopted by the CHA by classifying the goods under CTH 2403 9970 by declaring the same as Cut Tobacco. This fact has been admitted by Shri Aakash Thakkar in his voluntary statement recorded u/s. 108 of the Customs Act, 1962. 31.5.2. I find that CB firm is a nodal agency between Customs and Trade and bound to comply with certain mandatory obligations envisaged under Customs Brokers' Licensing Regulations, 2018. The CB should aware all the provisions of Customs Act and Allied Acts, Customs Tariff and Chapter Notes thereof and they should be sure of classification of the goods and in case of any difference they should sensitize their clients to classify the goods under appropriate CTH. In the instant case, I find that Shri Thakkar in his statement stated that the classification of goods was decided by the importer and he followed importer's instructions. I find that the CB should have advised their client to classify the goods under correct CTH or brought the matter to the notice of the Proper Officer. In the instant case, lfind that Shri Aakash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the importer willfully misstated the classification of goods as well as suppressed the facts from the Department with an intent to evade applicable GST Compensation Cess, which resulted in duty short levied of legitimate Custom duty. 31.4. In view of the facts above and legal pronouncement, I find that investigation has not brought any evidence to substantiate that noticee Shri Ali Virani, Proprietor of M/s. Viranis Impex had intentionally signed any false document. Also, it is matter of fact that the said B/E dated 21.01.2021 was filed under First Check Examination basis as well as for Warehousing of goods, therefore, even if there are any wrong declarations/mistakes by the importer, same could have been rectified before clearance of goods for warehousing by the Proper Officer. Hence, I refrained to impose penalty u/s 114AA of the Customs Act 1962." (Emphasis supplied) 8.1 The above findings of the learned Commissioner of Customs in the impugned order makes it very clear that in the absence of any evidence to show that there was suppression of facts from the Department, and inasmuch as the imported goods having been offered for examination by customs authorities on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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