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TMI Blog2024 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... this case neither would be the imposition of penalty under section 114A. In a nutshell, this is a simple case of assessment on first check basis on the request of the respondent importer but before the proper officer could get the goods examined and complete the re-assessment in the normal course, the Customs (Preventive) Officers intervened, took over and the Joint Commissioner (Preventive) completed the assessment. It is certainly not a case where the officers of Commissioner of Customs (Preventive) detected any fraud or mis-declaration. Section 28(4), section 111(m) and section 114A do not apply to this case at all. The Commissioner (Appeals) was correct in setting aside the confiscation and penalty through the impugned order. The impugned order upheld - the appeal filed by the Revenue is dismissed with consequential relief, if any, to the respondent. - MR. DILIP GUPTA, PRESIDENT AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Present for the Appellant : Shri M K Shukla, Authorised Representative Present for the Respondent: Shri Abhas Mishra, Advocate ORDER Revenue filed this appeal to assail the Order-in-Appeal [Impugned order] dated 29.06.2021 passed by the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee seeking clarification of: (a) Nature and composition of fabrics of the jackets; (b) Either the upper side of the fabrics of the jackets was impregnated, coated, covered or eliminated with plastics or some other materials and; (c) proper classification (HSN) code of the jackets. 6. The Textile Committee gave its test report including its opinion on proper HSN classification of the imported goods. After recording statements and further investigation, the officers of the Commissioner of Customs (Preventive) felt that the respondent had mis-classified the goods which were therefore liable for confiscation under section 111(m) and that the respondent was liable to penalty under section 114A and differential duty amounting to Rs. 14,79,092/- was recoverable under section 28(4). 7. The respondent, by letter dated 29.11.2019, waived the requirement of show cause notice and personal hearing and agreed to pay duty under protest. 8. The Joint Commissioner of Customs (Preventive) passed the Order-in-Original re-classifying the goods, confirming differential duty and ordering its recovery under section 28(4) along with applicable interest, confiscated the imported goods under section 111(m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the Government. Further, he submits that Textile Committee s reports based on which the goods were re-classified, confiscated were also not supplied to the respondent. 17. Learned counsel for the respondent also contended that section 28(4) does not apply to this case as the goods had not yet been cleared for home consumption when the affairs of Commissioner of Customs (Preventive) began the investigation and the respondent himself was unsure of the classification and sought examination of the goods on first check basis. Since section 28(4) does not apply to this case, no penalty under section 114A could be imposed on the respondent. He, therefore, prays that Revenue s appeal may be dismissed. 18. We have considered the submissions advanced by both sides and perused the records. 19. Admittedly, the respondent filed the Bill of Entry, self-assessed duty based on the documents, but had also sought first check so that classification could be done correctly. It is also recorded in the order of the Joint Commissioner that the respondent had provided reasons for seeking first check. 20. The Bill of Entry was filed on 16.10.2019. Before a decision on the request of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n force, with reference to (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific factor which affects the duty, tax, cess or any other sum payable on such goods, and includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assessed is nil; (emphasis supplied) 23. Assessment should be done by either the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition to various facts such as the nature of the goods, quality, quantity, etc., the Bill of Entry also contains some particulars such as the classification of the goods, exemption notification applicable, etc. which are a matter of opinion. The importer, for instance, may classify the goods under a particular heading and the proper officer may classify them under a different heading during re-assessment and further appellate authorities from Commissioner (Appeals) all the way up to Supreme Court may hold different views on the classification. Nothing in section 111(m) indicates that the goods can be confiscated if they are classified by the importer and such classification is not in conformity with the views of any officer or any expert. The Joint Commissioner clearly misunderstood the scope of section 111(m). We, therefore, find that the Commissioner (Appeals) was correct in setting aside the confiscation of the goods under section 111(m) and the consequential imposition of redemption fine under section 125. 28. The duty liability is not in dispute in this case and it has already been paid but the question to be decided if it is a case of assessment under section 17 or a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review of the assessment. It pre-supposes that the assessment was completed and some duty escaped assessment. For this reason, the relevant date to calculate the limitation under section 28 is the date on which the goods have been cleared for home consumption. Before the process of assessment under section 17 is completed and goods are cleared for home consumption under Section 47, there is no question of any demand under section 28. 32. In this case, assessment under section 17 and the issue of order clearing the goods for home consumption under section 47 were not completed. Since all the events in this case happened before the goods were cleared for home consumption, it was still a process of assessment even though the Joint Commissioner did the assessment instead of letting the proper officer do it in the normal course. The respondent did not challenge before us through any cross appeal the assessment of duty. In fact, the respondent also paid duty as per the assessment. 33. Since section 28(4) does not apply in this case neither would be the imposition of penalty under section 114A. In a nutshell, this is a simple case of assessment on first check basis on the request of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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