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TMI Blog2024 (8) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... identical arguments submitted by litigants were already elaborately dealt with in the Orders of the Kolkata Tribunal in the case of M/s. Bagrecha Enterprises Ltd. Vs. Commissioner of Custom, Chennai [ 2024 (5) TMI 943 - CESTAT CHENNAI] wherein it was held that the Clear Float Glass is more appropriately classifiable under CTH 7005 1090 of the Customs Tariff Act, 1975. Whether Extended Period is invokable or not considering the evidence and facts in this appeal? - HELD THAT:-After finalisation of assessments for over 5 years, it is not open for the Department to invoke the larger period of limitation as these assessments have undergone the rigours of provisional assessment and subsequent finalisation for the same product and for the same reason, the appellant has not suppressed or mis-declared any fact and the proposal to reclassify was only on the basis of interpretation made in the CRA objection and not on account of any shortcoming on the part of the appellant. Therefore, invoking extended period in these proceedings, either for demand of duty or for imposition of mandatory penalty is not at all sustainable. So, the issue of limitation is decided in favour of the appellant and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue FTA benefit of said Notification, resulting in short payment of applicable Customs duty. 1.3 Accordingly, a Show Cause Notice dated 08.08.2022 was issued to the Appellant proposing:- i. to reject the classification of CFG under CTH 70051090 adopted by the Appellant for the subject imports and to re-classify the same under CTH 70052990 thereby seeking denial of the benefit of Notification No. 46/2011-Cus dated 01.06.2011 ii. to demand differential Customs duties of Rs.13,11,75,525/- in respect of imports of CFG during the period from 13.09.2017 to 01.04.2022, arising on account of short levy, under Section 28(4) of the Customs Act, 1962 along with applicable interest under Section 28AA of Customs Act, 1962. iii. to Confiscate the subject import goods valued at Rs.1,00,56,69,136 /- under Section 111(m) of the Act ibid and to iv. impose penalty under Section 114A/112(a) of Customs Act, 1962. 1.4 After the due process of law, the adjudicating authority vide Order-in-Original No. 102161/2023 dated 05.06.2023 confirmed all the proposals put forth in the Show Cause Notice and imposed a redemption fine of Rs. 10 Crores in lieu of confiscation under Section 125 of the Act ibid and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass in sheets ; (c) the expression absorbent, reflecting or non-reflecting layer means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infra-red light or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass. As such, it was required to be proved whether the CFG having microscopic tin layer on one side of the glass is an absorbent, reflecting or non-reflecting layer as contemplated under the said Chapter note. It was submitted that as per the test report given by CGCRI, Kolkata in GC/TCC/TR-3028/18-19 dated 06.02.2019, it was reported that the CFG imported by the Appellant is a non-wired, non-tinted float glass having an absorbent tin layer on one side of the glass which is ample proof justifying the classification under 70051090. The finding in Para 39-46 of the impugned order that the Tin Layer is inherent to the production of float glass and so such a layer is not adequate to satisfy Chapter Note 2(c) is not acceptable as neither the Customs tariff nor the HSN explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisional assessments proceeded to cast aspersions with utter prejudice. (iv) It was pointed out that in identical cases, the Customs Authority for Advance Ruling, Mumbai vide ruling Nos. CAAR/MUM/ARC/10/2022 dated 10.05.2022 in the case of M/s. Suraj Constructions and CAAR/MUM/ARC/36/2021 dated 24.09.2021 in the case of M/s. Chandrakala Associates [2021 (9) TMI 1433], held that the Clear Float Glass with absorbent layer on one side would merit classification under heading 7005 and more specifically under CTH 70051090, irrespective of the tariff heading mentioned in the Country of Origin Certificate (COO). (v) It was submitted that on identical issues pertaining to classification of CFG, the Commissioner of Customs (Appeals), Noida vide the Order-in-Appeals no. 400 401-2022-23 both dated 09.03.2023 had upheld the classification of goods under CTH 70051090 and had extended the benefit of Notification No. 46/2011-Cus dated 01.06.2011(Serial No. 934). It was pointed out that the above orders have attained finality as the same were not challenged. (vi) It was pointed out that the impugned order denied the benefit of the Notification No. 46/2011-Customs by discarding the Country of Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections by CRA/ reply of the department, reply of the party, relevant legal provisions, extant case laws and relevant circulars of the CBEC. It was averred that it is the onus of the Department to prove and establish the classification of the product, in case, the Department confronts the classification claimed by the Appellant and contradicted the findings in the impugned order that in cases of entitlement of exemption Notification, the onus was on the Appellant. It was submitted that it is a well-settled legal principle that the responsibility is cast on the Department to establish that the classification claimed by them is correct. In this regard the Appellant relied on the ratio of the decisions in the cases of Hindustan Ferrodo Ltd. [1997 (89) ELT 16 (SC)], Collector of Central Excise Vs. Calcutta Steel Industries and Others [1989 (39) ELT 175 (SC)], Union of India Vs. Garware Nylons Ltd. [1996 (87) ELT 12 (SC)], Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner of Central Excise, Nagpur [2006 (196) ELT 3 (SC)], Parle Agro (P) Ltd. Vs. Commissioner of Commercial Taxes, Trivandrum [2017 (352) ELT 113 (SC)], Commissioner of Customs Central Excise, Amritsar Vs. DL Steels [2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wilful mis-declaration by the importer is not at all tenable as claiming a particular classification under the Customs Tariff Act cannot and does not amount to misstatement. It was also submitted that the misclassification was not to be equated with the mis-declaration within the meaning of Section 28(4) of the Customs Act as it was settled law that once the goods are correctly described, the bona fide adoption of classification by the importer cannot be equated with mis-declaration as the importers are not expected to be fully conversant with schedule to the Customs Tariff Act, 1975. Further, it was submitted that the impugned order does not contain any finding of positive suppression by the Appellant. Reliance was placed in this regard on the following decisions:- a. Northern Plastic Ltd. Vs. Collector of Customs, Central Excise [1998 (101) ELT 549 (SC)] b. Commissioner of Central Excise, Delhi Vs. Ishaan Research Lab (P) Ltd. [2008 (23) ELT 7 (SC)] c. Commissioner of Customs, Bangalore Vs. A. Mahesh Raj [2006 (195) ELT 261 (Kar.)] d. Sirthai Superware India Ltd. [2020 (371) ELT 324 (Tri.-Mumbai)] e. Midas Fertchem Impex Pvt. Ltd. [2023 (1) TMI 988 CESTAT, New Delhi] f. Signet Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detained/seized goods for not having valid e-way bill which is not applicable in the present appeal since there was no seizure or provisional release of goods in question. Hence it was averred that confiscation cannot be ordered when the goods are not physically available and accordingly, it was submitted the impugned order holding that the goods are liable for confiscation and imposing redemption fine is not sustainable. (xv) It was contended that when demand itself is unsustainable, the question of demanding interest, penalty and redemption fine does not arise. 3. The Ld. Counsel Shri M. Karthikeyan for the Appellant recapitulated the averments in the grounds of appeal and further submitted that the issue involved in the appeal is settled by the decision of the Hon ble Tribunal in the case of Bagreecha Industries Limited Vs. Commissioner of Customs (Port), Kolkata [Final Order Nos. 77460-77462/2023 dated 03.11.2023] passed in Customs Appeal Nos. C/75536-75538/2023 wherein the Hon ble Tribunal had held that the presence of tin layer on the CFG is sufficient to classify the same under CTH 70051090 and also covered by the decision of Hon ble Tribunal Chennai in the case of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assifiable under CTH 70051090 as declared/self- assessed by the Appellant or under CTH 7005 2990 as re-classified/re-assessed by the Department in terms of Chapter Note 2(c) to Chapter 70 of Customs Tariff Act, 1975? ii. Whether the Appellant is eligible for FTA benefit under Sl. No. 934 of Notification No. 46/2011-Cus dated 01.06.2011? and iii. Whether Extended Period is invokable or not considering the evidence and facts in this appeal. 7. We find that the appellant had imported Clear Float Glass (CFG) from Malaysia through Chennai Seaport by declaring the classification under CTH 7005 1090 and availing FTA benefit under Sl. No. 934 of Notification No. 46/2011-CUS dated 01.06.2011 by furnishing the required Certificate of Origin (COO) in terms of Customs Tariff (Determination of Origin of Goods Under the Preferential Trade Agreement Between the Government Of Member States of ASEAN and Republic of India) Rules, 2009. The department, based on an audit objection, rejected the classification declared by the Appellant and re-classified the imported goods under CTH70052990 denying the benefit of Notification cited supra which culminated in the issuance of a SCN. The Ld. Advocates for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed) m 2 10% - 7005 21 10 --- opacified, flashed or merely surface ground : Tinted m 2 10% - 7005 21 90 --- Other m 2 10% - 7005 29 -- Other : 7005 29 10 --- Tinted m 2 10% - 7005 29 90 --- Other m 2 10% - 7005 30 - Wired glass : 7005 30 10 --- Tinted m 2 10% - 7005 30 90 --- Other m 2 10% - Chapter Note 2(c) to chapter 70 read as follows:- 2. For the purposes of headings 7003, 7004 and 7005 : (a) glass is not regarded as worked by reason of any process it has undergone before annealing ; (b) cutting to shape does not affect the classification of glass in sheets ; (c) the expression absorbent, reflecting or non-reflecting layer means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infra-red light or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass. 9.2 It is evident from the manufacturing process that the CFG manufactured as above has a microscopically thin coating of metal layer, namely TIN on one side of the CFG, which is known as Tin Side . Further it is an undisp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of tin on one side, he proceeds to give a finding that such layer of tin is not the result of applying any coating on the CFG but of a natural phenomena in the manufacture of CFG which inevitably introduces tin by thermal diffusion into one side of the glass. In other words, the Ld. Adjudicating Authority tows the audit objection of CRA that the absorbent reflecting or non-reflecting layer is available only on the tin side of the CFG and not on the air side of the CFG. 9.7 The advocate would submit that, neither the tariff heading nor the Chapter Note warrants nor mandates that the absorbent reflecting or non-reflecting layer shall be on which side of the CFG. In other words, the only requirement for CFG to get classified under 70051090 is that the CFG shall have an absorbent reflecting or non-reflecting layer, which is undisputedly present in the instant case and the same, is evidenced by test reports issued by the notified Government Agency viz., CSIR-CGCRI as many as more than 40 test reports pertaining CFG imports through various Custom Houses. Further, the Ld. Advocate referred to an RTI application made to CSIR wherein it was clarified that all the float glasses tested for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department. 18. We further find that the impugned proceedings were initiated against the appellant on the basis of Audit Para holding that the Float Glass invariably a layer of Tin on one side, which does not mean that all Float Glass to be classifiable under 7009 1090. 19. We find that the appellant sought reply under RTI dated 17.07.2023, wherein the question was raised that it is observed that in some of the Report, no other layer other than Tin layer is found on one side of the Glass which is fluorescent is mentioned. Whether such layers are reflective or notreflective and whether such layers are absorbent or not? The reply is given as (a) not-reflective and (b) absorbent (UV). 20. If the same is considered then the said clarification is satisfying the Chapter Note 2(c) of Chapter 70 of the Customs Tariff Act and the said Report has not been relied upon by the adjudicating authority while adjudicating the case. Therefore, the impugned order is bad in law. 21. We further take note of the fact that in the case of M/s. Suraj Constructions (supra), the Advance Ruling Authority has examined the issue and observed as under:- 7. I have considered all the materials placed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state that unless M/s. Xinyi produces a similar document, their application with different exporting and importing tariff code cannot be approved. 22. Further, in the case of M/s. Chandrakala Associates (supra), again the Advance Ruling Authority has examined the issue and observed as under:- 10. I have considered all the materials placed before me for the subject goods. I have gone through the submissions made by the applicant during personal hearing. In the absence of any comment from the jurisdictional Principal Commissioner/Commissioner of Customs, on the impugned subject matter, I proceed to render an advance ruling based on materials available on record. The subject goods for which advance ruling has been sought, their characteristics, manufacturing process, utility etc. are already mentioned in the aforementioned paras. The subject goods are clear float glass, with an absorbent layer, which is fluorescent under UV illumination. The subject goods are not wired, not tinted or not green in colour. The heading 7005 10 covers nonwired glasses having an absorbent, reflecting or non-reflecting layer and the headings 7005 21 to 7005 29 deal with non-wired glasses which are body tint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression absorbent, reflecting or non-reflecting layer means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infra-red light or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which prevents light from being reflected on the surface of the glass. 5.4.3 A Plain reading of CTH 7005 would reveal that 700510 covers non-wired glass having absorbent, reflecting or non-reflecting layer. A clear conclusion is that single clash entry after 70051090 i.e. . other non-wired glass would cover non-wired glasses without absorbent, reflecting or non-reflecting layer. 5.4.4 The Adjudicating Authority has held that CTH 700521 covers glass which may or may not have absorbent or reflecting or non- reflecting layer. The Adjudicating Authority has contended that the impugned goods are coloured through out body (i.e. body tinted) and thus covered by CTH 700521 and articles of CTH 700521 may or not have absorbent/reflecting layers. This interpretation itself is erroneous in light of scheme of CTH under 7005 and explanation given in 5.4.3 above. 5.4.5. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unable to persuade ourselves with the Revenue s contention which is based on contested CRA objection that the presence of metal layer should be by way of conscious coating and on the Air Side of the CFG. It is relevant to note here that on one hand the revenue themselves have not accepted the CRA objection, which is the basis for these proceedings, and are contesting the CRA objection. Thus, we conclude that the classification adopted by the appellant under tariff item 7005 1090 is correct and the classification determined in the impugned order is without any basis and hence not sustainable. Appreciating the ratio of the decision of Kolkata Tribunal in the Appellant s own case where facts are identical, we hold that the impugned Order-in-Original No. 101620/2023 dated 11.04.2023 cannot be sustained and so ordered to be set aside. 12. As such, we confirm the classification of the imported CFG under tariff item 7005 1090 and consequently, the appellants are rightly entitled for the benefit of Sl.No. 934 of Notification No. 46/2011-cus., as claimed by them subject to fulfilment of production of valid Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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