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TMI Blog2024 (5) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. Thus, it is apparent that the main issue has not been dealt with by the Commissioner (Appeals) In this circumstances, we alert with no option but set aside the impugned order and remand the matter back to Commissioner (Appeals) to decide a fresh. SOMESH ARORA - It is clear that from 22nd September, 2017 brooms were divided into two categories, and term Broomsticks also came to be divided into two categories i.e. Brooms or brushes consisting of twigs or other vegetable material bound together with or without handles and brooms and Broomsticks which were other types i.e. material other than vegetative materials etc. In which category, the plastic brooms will normally get included. It is thus clear that Broomsticks which are made up of plastic and do not use a vegetable material alone are taxable w.e.f 22.09.2017 in Notification No. 01/2017 since after amendment, the Broomsticks fall under Serial No. 260 of Notification No. 01/ 2017 have to be of other than Chapter Heading No. 96031000 and therefore have to be Broomsticks of other than twigs and such vegetable materials. Since, the show cause notice has not taken note of development through above stated amendments, therefore in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other vegetable materials, bound together, with or without handles or not. 2.2 Learned counsel pointed out that the department had finally assessed the bills of entry filed by them. If the department was aggrieved with the said assessment they should filed an appeal before Commissioner (Appeals). She argued that the department failed to challenge the assessment order and therefore the said assessment has attained finality. In absence of any challenged assessment the department cannot reopen the assessment under section 28 of the Act. She relied on the decision of Hon ble Apex Court in case of ITC Limited 2019 (368) ELT 216 (SC). 2.3 Learned Counsel further argued that the proceedings have been initiated against the appellant in the course of audit conducted by Customs revenue audit. On the basis of said audit notice was issued to the appellant raising demand of duty, interest and imposition of penalty. Learned counsel further relied on section 99A of the Customs Act, 1962 with relates to the audit. The said section reads as follows: Section 99A. Audit - The proper officer may carry out the audit of assessment of imported goods or export goods or of an auditee under this Act eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal memorandum have not contested the classification of the goods imported by them against Sr. No. 260 of Schedule-I of Notification No. 1/2017-Integrated Tax (Rate) dated 28.06.2017. They have merely stated that they were under bonafide belief that the exemption was available to them and accordingly they had filed Bills of Entry in question. determination are as under: Therefore, in the present appeal, the issues before me for determination are as under : i. Whether department can initiate proceedings under Section 28 of the Customs Act, 1962, without challenging the assessment made under the Bills of Entry. 11. Whether extended period of limitation is invokable and whether the appellant is liable for penalty under Section 117 or 114A of the Customs Act, 1962, as the case may be, in the facts and circumstances of the case. 4.1 It is seen that the Commissioner (Appeals) has not dealt with the primary issue, if the goods imported by the appellant are also covered by Sr. no. 144 of Notification no. 2/2017 or only by Sr. no. 260 of Notification no. 1/2017. The two entries are reproduced below:- Schedule-I of Notification No.01/2017-Integrated Tax (Rate) dated 28.06.2017 Sr. No. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepting any . It is to be noted that Entry No. 260 of Notification No. 01/2017 dated 28.06.2017 was further amended vide Notification No. 27/2017 on 22nd September, 2017 to mention as follows : 260 9603 [other than 9603 10 00] Broomsticks [other than brooms consisting of twigs or other vegetable materials bound together, with or without handles] 6.1 It is to be considered that Broomsticks are known to be primarily of two types, one where cleaning part consists of usually stiff fibers made of plastic material framed with a long handle and other Broomsticks made by using twigs or other vegetable materials which are Broomsticks made with vegetable material. Illustrative photos of two types of Broomsticks are placed below : Coconut Broomstick Plastic Broomstick 6.2 It appears from the notification reproduced above that initially all Broomsticks were classified under Serial No. 260 of Notification No. 01/2017 w.e.f 28 June, 2017 up to 22nd September, 2017 i.e. the date by Notification No. 27/2017 with effect from this date under Serial No. 260, Chapter Heading No. 9603 in the numeric portion of the notification from the Tariff Heading No. 9603 (other than 96031000 came to be mentioned). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question i.e. Broom-Sticks is made from plastics, hence, it is very much clear that it should be classified as Brooms other than brooms consisting of twigs or other vegetable materials bound together, with or without handle. Thus brooms made from plastics are other than brooms classifiable under Heading 9603 10 00. Therefore, we held that the correct classification of the Plastic Broom-Stick is under Heading 9603 29 00 and classifiable as Others . 6.3 It is thus clear that Broomsticks which are made up of plastic and do not use a vegetable material alone are taxable w.e.f 22.09.2017 in Notification No. 01/2017 since after amendment, the Broomsticks fall under Serial No. 260 of Notification No. 01/ 2017 have to be of other than Chapter Heading No. 96031000 and therefore have to be Broomsticks of other than twigs and such vegetable materials. Since, the show cause notice has not taken note of development through above stated amendments, therefore in the instant case, learned Commissioner (Appeals) while deciding classification should keep above discussion in mind while working into demand period and related statutory changes. It should first decide about the nature of Broomsticks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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