9911796707
TMI Blog2024 (6) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... ta vs. M/s. Umbar Marketing Private Limited, [ 2023 (6) TMI 421 - CESTAT KOLKATA] . This Bench has held ' the goods are not classifiable under CTH 54071094 as proposed by the Appellant.' Interest and penalty - HELD THAT:- There is no mis-classification or mis-declaration on the part of the Appellant. They have claimed the consignment to be under CTH 5707 and they have paid the applicable Customs duty. The Show Cause Notice was in error by taking the view that all the 182 consignments were classified by the appellant under CTH 5903. Since the duty has already been correctly discharged by the Appellant under the heading 5407, we hold that the impugned order is required to be set aside. Accordingly, the impugned order is set aside to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CTH of 5407 and they had paid the applicable Customs duty under this Tariff. However, in the Show Cause Notice the entire 182 consignments were taken as if the Appellant had claimed the CTH to be 5903. In respect of dropping of demand towards 181 consignments, the Revenue is in appeal. Being aggrieved with the confirmation of demand in respect of 1 consignment, the Appellant is before the Tribunal. The Adjudicating authority has also imposed penalty on the Director of the firm. Being aggrieved, two Appeals have been filed by the importer and one Appeal has been filed by the Revenue. All the Appeals have been taken up together for disposal with the consent of both the sides. 2. The Ld. AR for the Department submits that Revenue viewed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the Bench before the High Court/Supreme Court and hence the issue has reached finality. Therefore, he submits that in case of 181 consignments he is fully covered by the decision of this Bench. Hence, he prays that the Revenue s Appeal may be dismissed. 5. In respect of 1 consignment he submits that the Adjudicating authority is in error in initially treating the consignment as classified under CTH 5903. Admittedly, the Appellant had never claimed this CTH 5903 for this 1 consignment. The Appellant was maintaining that the consignment was covered under CTH 5407 only and they had paid the Customs duty applicable for this CTH. Therefore, he submits that the Adjudicating authority is in error in confirming the demand. 6. Heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5407-Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404 540710-Woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polysters. From the description of the sub heading mentioned above, we find that the woven fabrics obtained from the High tenacity yarn of nylon or other polyamides or of polyesters are classified under this heading. Thus, for classification of the goods under Chapter 5407, it is required to know whether the woven fabrics are made from high tenacity yarn or not. We find that the Test Report received from RLTC does not contain these details. In fact, the RLTC Report says it cannot be ascertained whether the fabrics are made from high tenacity ya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Pepsico Holdings Pvt.Ltd. v. Commissioner of C.Ex., Pune-III [2019 (25) G.S.T.L. 271 (Tri.-Mumbai)], wherein the Tribunal observed as under:- 8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the latitude for invoking Section 11A of Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertaining to recovery of duties not paid or short-paid will have to be followed to the letter. 23. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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