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TMI Blog2024 (7) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... orted goods which were also physically examined. It is also stated that earlier the Customs Authorities had also examined the previous classification of subject goods on several occasions and permitted clearance under the classification adopted by the appellant. The appellant has placed on record the order dated 24.02.2023 passed by the Commissioner in respect of a show cause notice dated 01.10.2022 issued to the appellant for the past consignment of goods imported from September 2015 in which invoking the provisions of section 28 (4) of the Customs Act were also invoked. The Commissioner, however, not only held that the provisions of section 28 (4) could not have been invoked, but also held that sections 111 and 114A could also has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial duty of Rs. 12,71,462/- under section 28 (4) of the Customs Act, 1962 [the Customs Act] with penalty. The Additional Commissioner also confiscated the goods under section 111 (m) of the Customs Act, but gave an option to the appellant to redeem the confiscated goods on payment of fine of Rs. 1.50 lakhs. 2. The appellant is engaged in the business of manufacture and distribution of apparel, footwear and accessories in India. It imported a consignment of goods containing women's 100% Polyester Knitted Jackets, 100% Polyester Woven Jackets and 100% PU Woven Jackets for which a Bill of Entry dated 14 September 2019 was filed. The goods were classified in the following manner :- (a) Knitted Jackets under HSN Code 6104 33 00; and (b) Wove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the differential duty amount. To support this contention that the provisions of section 28 (4) of the Customs Act could not have been invoked, learned counsel relied upon an order passed by the Commissioner in respect of a similar matter where a categorical finding has been recorded that the provisions of section 28 (4) of the Customs Act could not have been invoked. 8. Shri Girijesh Kumar, learned authorized representative appearing for the department, however, supported the impugned order and submitted that it does not call for any interference in this appeal. 9. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 10. The contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso held that sections 111 and 114A could also has not been invoked. The relevant portion of the order dated 24.02.2023 passed by the Commissioner is reproduced below :- 41. Consistent with the acceptance regarding mis-classification, Shri Abhik Saha undertook that they would pay the differential duty, along with fine and penalty which arises due to mis-classification. On this issue, during the personal hearing held before me on 23.01.2023, it was submitted that they have accepted the change in classification, discharged the differential duty liability and interest on delayed payment thereof. 42. In view of the above, it is evident that the impugned goods were mis-classified even during the past period of five years covered by this SCN. Bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed of the correct classification as per the HSN, the noticee have accepted the same and discharged the differential liabilities promptly, thereby supporting the position that non-disclosure of the presence of zipper was not a willful suppression of fact. Therefore, this is a simple case of mis-classification, wherein provisions of section 28 (4) cannot be invoked. 48. Since this is a simple case of mis-classification, with no mis-declaration and willful suppression of fact with intent to evade the duty, the impugned goods are not liable for confiscation, also noting that these relate to past clearances and are not available for confiscation under section 111 (m) as proposed in the SCN. 49. Since the impugned goods are not liable for co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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