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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 ..... ntry No. 5322424 dated 16.10.2019 to clear "men's woven quilted/padded polyester polyfill (unpopular brands)", self-assessed duty of Rs. 10,47,058/- on the goods and also requested for first check for classification. 4. When goods are imported they are usually cleared through a process called "second check" or "second appraisement" in which the Bill of Entry is assessed based on the declarations in the documents and thereafter the goods are examined. In some cases-either on the request of the importer or as per the decision of the officer- goods are subject to "first check" or "first examination" in which the goods are first examined to see if they are as per the documents and thereafter based on the examination report, the Bill of Entry is assessed. In this case, the respondent filed the Bill of Entry self-assessing duty but also sought first check for classification. In other words, the respondent was not fully sure about the classification of the imported goods and therefore, wanted the goods to be examined first. After examination, the proper officer would have re-assessed the Bill of Entry either affirming the self-assessment or modifying it. 5. Before the examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us are whether the Commissioner (Appeals) was correct in setting aside the confiscation, fine and penalty or not. 11. We have heard Shri M. K. Shukla, learned authorised representative appearing for the department and Shri Abhas Mishra, learned counsel for the respondent and perused the records. 12. The "grounds" in this appeal are numbered paragraphs 14 to 30. Of these, paragraphs 14 to 21 are a reproduction of revenue's reply in the appeal filed by the respondent before the Commissioner (Appeals). Needless to say, these are irrelevant to the appeal before us. Paragraphs 22 to 30 are the grounds of appeal before us. 13. Learned authorised representative submitted that the goods which do not correspond in respect of the value or any other particulars with the entry made and the Bill of Entry are liable for confiscation under section 111(m) and the Commissioner (Appeals) erred in setting aside the confiscation and redemption fine. 14. He also submitted that the differential duty was correctly confirmed and recovered under section 28(4) because the importer suppressed facts by not disclosing the correct description of the goods and their classification with an intent to evade du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Bill of Entry at the Inland Container Depot, Ballabhgarh, where the Bill of Entry was filed, the officers of Commissioner of Customs (Preventive) intervened. The respondent importer was unsure of the classification of the goods and the type of goods which were supplied and wanted the goods to be examined. Had the goods been examined by the examining officer, the nature of goods and the classification could have been ascertained and if necessary the Bill of Entry could have re-assessed by the 'proper officer' under section 17. After payment of duty the goods could have been cleared for home consumption. Instead of letting the examining officer examine the goods, the Customs (Preventive) Officers examined them under a Panchnama. 21. It needs to be noted that the total number of jackets found during the examination was 10,559 which was exactly what was declared in the Bill of Entry. 22. Although the classification of the goods itself is not assailed by the respondent, we find that the manner in which the classification was done certainly is not correct. The Joint Commissioner classified the goods based on an "advice given by the Textile Committee". The Textile Committee is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff. If at all, there are any experts in classification it will be the appraisers or the Assistant Commissioners or Deputy Commissioners in the group in the Custom House or ICD who deal with the classification of the goods day in and day out. 25. The Joint Commissioner classified the goods in Order-in-Original only on the basis of "expert opinion of textile committee on classification". Classification of goods under the Customs Tariff has to be based on the nature of goods, the Customs Tariff and the General Interpretative Rules for interpretation of the Tariff. It cannot be based on some expert opinion. While experts can give test reports on the nature of the goods, type of material, etc., classification, which is a part of assessment, has to be done by the proper officer. The Joint Commissioner also concluded that since the respondent had not classified the goods in self-assessment in conformity with the views of the Textile Committee, it had mis-classified the goods. 26. Further, he concluded that by mis-classifying the goods the appellant had rendered the goods liable for confiscation under section 111(m). This section reads as follows: "Section 111(m) any goods which do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper officer re-assesses the duty, the importer has to pay the differential duty. If during examination any discrepancy is found, the proper officer may again re-assess the duty and the differential duty may be paid. This process of assessment and re-assessment and payment of duty under section 17 comes to an end once the goods are cleared for home consumption under section 47. Section 47 reads as follows: "47. Clearance of goods for home consumption.- (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption: ******" 30. Once the goods are cleared for home consumption under 47, they cease to be 'imported goods' and 'dutiable goods' and no duty can be assessed on them and even the person who imported the goods ceases to be the importer. Sections 2(14), (25) and (26) are reproduced below which clarify this legal position: "Section 2 Definitions (14) "dutiable goods' means any goods which are cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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