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TMI Blog2024 (8) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Tariff Act, 1975 - the issue of classification of Clear Float Glass is decided in favour of the appellant. Thus, the appellant succeeds on merits. Invocation of extended period of limitation - penalties - HELD THAT:- After finalisation of assessments relying on the Test Report, 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 consequently the order of confiscation and imposition of fine and penalties are set aside. The imported Clear Float Glass is more appropriately classifiable under Customs Tariff Heading 7005 1090 of the Customs Tariff Act, 1975 and thus is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms duty. 1.3 Accordingly, a Show Cause Notice dated 11.10.2022 was issued to the Appellant proposing inter alia : - 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 to deny the benefit of Notification No. 46/2011-Cus dated 01.06.2011. ii. to demand evaded/short paid Customs duties of Rs. 4,12,70,377/- in respect of imports of CFG during the period from 12.10.2017 to 22.03.2022, 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. 31,77,99,658/- under Section 111 (m) of the Act ibid and iv. to impose penalty under Section 114A/112 (a) of Customs Act, 1962. 1.4 After due process of law, the Adjudicating Authority vide Order-in-Original No. 102220/2023 dated 09.06.2023 confirmed all the proposals put forth in the Show Cause Notice and imposed a redemption fine of Rs. 3,10,00,000/- in lieu of confiscation under Section 125 of the Act ibid and imposed a penalty equal to the duty confirmed in terms of Section 114A of Act ib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorbent, reflecting or non-reflecting layer means, as mentioned below: - 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. 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 dated 31.01.2019 issued by CGCRI, Kolkata wherein it was clearly specified that an absorbent layer (Tin) was observed on one side of the glass which is fluorescent under UV illumination , the tin layer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE, Chandigarh [2006 (197) ELT 324 (SC)]. vi. It was contended that the Show Cause Notice was partly time barred in respect of Bills of Entry pertaining to 2018-2020 and the facts of the instant case cannot be said to have warranted the invocation of extended period of limitation under Section 28 (4) of the Customs Act, 1962 as there was no collusion or wilful mis-statement or suppression of facts. It was submitted that the facts were always available with the department as the subject goods were provisionally assessed and test reports were submitted as early as 2019 and hence the ingredients for invoking the extended period was unjustified in as much as the impugned order had not brought anything on record to prove the same. Further, it was disputed that the allegation of wilful misdeclaration by the importer is not at all tenable as claiming a particular classification under the Customs Tariff Act cannot and does not amount to mis-statement. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs (Import) Vs. Mahesh India [2006 (7) TMI 306], Collector of Customs Vs. Kusum Marodia [1995 (77) ELT 808 (Cal.)], Lan Esenda Ltd. Vs. Commissioner of Customs, Mumbai [2005 (192) ELT 305 (Tri.-Mum.)], Kevin Infotech Pvt. Ltd. Vs. Commissioner of Customs(Port), Kolkata, [2007 (216) ELT 435 (Tri.-Lol)], Mangalore Refinery Petrochemicals Ltd. Vs. CC, Mangalore [2002 (145) ELT 689 (Tri.-Bang.)] and hence it was stressed that the redemption fine imposed were unsustainable. 3.1 The Ld. Counsel Ms. Shrayashree T. representing the Appellant reaffirmed the averments in the grounds of appeal and further submitted that the issue involved in the appeal was already covered by the decision of the 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 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 Tribunal Chennai in the case of the same appellant in Final Order No. 40352/2024 dated 27.03.2024 passed in Customs Appeal No. 40203 of 2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has supported the findings of the Adjudicating Authority, that there is no absorbent, reflective or non-reflective layer deposited on the surface of the glass and as such Clear Float Glass in the present case is not classifiable under 70051090 of the Customs Tariff Act, 1975. The item has not undergone any coating process and as there is no absorbent, reflective or non-reflective layer on the air side of Float Glass under import, it cannot be covered under Sub-heading 700510. He has prayed for setting aside the appeal, in view of the clear findings recorded in the impugned Order-in-Original dated 09.06.2023 of Commissioner of Customs, Chennai-II, Chennai. 5. Heard both sides and carefully considered the submissions and evidences on record. 6. The issues which arise for decision in this appeal are: i. Whether the imported Clear Float Glass, is classifiable 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? an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the same, is evidenced by test reports issued by the notified Government Agency viz., CSIR-CGCRI. Further, a reference was made to an RTI application addressed to CSIR wherein it was clarified that all the float glasses tested for Customs by them has a tin layer on one side of the float glass which is absorbent and non-reflective as per the test report of the said Agency. 10. We find that the issue of classification of CFG is no more res integra since the issue and identical arguments submitted by litigants were already elaborately dealt with in the Orders of the Kolkata Tribunal vide [Final Order Nos. 77460-77462/2023 dated 03.11.2023] and Chennai Tribunal vide [Final Order No. 40352/2024] in the case of M/s. Bagrecha Enterprises Ltd. Vs. Commissioner of Custom, Chennai wherein it was held that the Clear Float Glass is more appropriately classifiable under CTH 7005 1090 of the Customs Tariff Act, 1975 and the relevant paras have been reproduced below for the sake of convenience:- 9.1 Before proceeding to determine the appropriate classification of imported CFG, it would be relevant to reproduce rival tariff entries with the relevant Chapter Note as follows:- 7005 FLOAT GLASS AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G and hence, the imported CFG would not merit classification under tariff item 70051090. The Ld. Adjudicating Authority has confirmed the above proposition in the impugned order. 9.4 But, the Ld. Advocate argued that as per CTH 7005 to get classified under Chapter Heading 70051090 of CTA, CFG shall be a non-wired glass, having an absorbent, reflecting or non-reflecting layer of metal. The imported CFG is non-wired is not in dispute. Entire dispute centres around whether the imported goods are having an absorbent layer or not in terms of Chapter Note 2(c) of Chapter 70 of the Customs Tariff Act, 1975. As per Chapter Note 2(c) of Chapter 70 what needs to be demonstrated is that the CFG has 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. 9.5 The Ld. Advocate has further submitted that it is evident from the manufacturing process explained above as well as the test report referred above, that the CFG i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) would only envisage that the CFG should have an absorbent, reflective or non-reflective thin microscopical layer for the purpose of classification under tariff item 70051090, which is very much present and remains undisputed. It was submitted that it is not permitted for the Ld. Adjudicating Authority to add or amend either tariff or chapter notes, to suit revenue's benefit. The above contentions are convincing as in matters of classification, a simplicitor and straight forward approach is paramount unless there is an anomaly. 10. We also note that in the appellant's own case on the very same issue, the co-ordinate bench of this Tribunal at Calcutta vide their Final Order No. 77460-77462/2023 reported in [2023 (11) TMI 485 CESTAT KOLKATA] has held that the CFG is rightly classifiable under tariff item 7005 1090. The relevant Paragraphs read as follows:- 16. We find that there is no dispute that the impugned goods is non-wired glass. By conjoint reading of the above note 2(c) and the manufacturing process, it can be inferred that CFG would have microscopical layer of metal, namely tin, which is an absorbent layer as contemplated under the above said Chapter Note 2(c). Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-heading 7005 1090. Based on the applicant s submission about the country of origin and the manufacturer of the subject goods, benefits under sr.no.934 of the table annexed to the exemption notification no.46/2011-Cus., dated 01.06.2011, would be available, subject to the condition that in respect of each case of import, the applicant would have to produce evidence before the Deputy/Assistant Commissioner of Customs as to the origin of subject goods. 8. On the issue of whether the benefit of the said exemption would be available even if the sub-heading mentioned in the COO differs for 70051090, the applicant their authorized representative were asked to explain the context of the said question. It appears that the subject goods are being exported from Malaysia under its code 70052990. The applicant has submitted a copy of the letter ref. no.MITI.700-2/26 Jld.6(38) dated 30.04.2021 from the Director of Trade and Industry Cooperation, Ministry of International Trade and Industry (MITI, hereinafter), stating that they had been requesting the clear float glass exporters to provide an advance ruling/document of the Government of India or from Royal Malaysian Customs confirming the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 37/2020-Customs (ADD), dated 11.11.2020. The benefit of exemption notification no.46/2011, dated 01.06.2011 would be determined in accordance with conditions laid down in the said notification. 23. Further, the Ld. Commissioner (Appeals) in the case of M/s. Asahi India Glass Limited (supra) has examined the issue and observed as under:- 5.4 Now coming to merits of issue, the contesting entries viz 70051010 (as declared by the appellant) and 70052110 (as per the assessing Authority) from the Customs Tariff are reproduced below:- Upto 31.12.2019 7005 Float glass and surface ground or polished glass, in sheets, whether or not having an absorbent, reflecting or non-reflecting layer, but not otherwise worked. 700510 -Non-wired glass, having an absorbent, reflecting or non-reflecting layer. 70051010 --- Tinted 70051090 --- Other . - Other non-wired glass; 700521 -- Coloured throughout the mass (body tinted) opacified, flashed or merely surface ground: 70052110 --- Tinted. It is pertinent to mention that w.e.f. 01.01.2020 (as amended vide Finance Act, 2019 and made applicable as per Notfn.89/2019-Cus (N.T.), dated 10.10.2019), the sub-heading700521 was amended to read as under:- .Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This fact is not disputed. Accordingly, I find absolutely no reason to exclude these goods from 700510 classify them under 700521. Rather, the said goods viz. Light Green Float Glass/Coloured Float Glass with absorbent Layer of Tin on one side would merit classification under Subheading 7005 and more precisely under CTH 7051010. 24. As from the facts of the case, it is clear that the Clear Float Glass imported by the appellant are absorbent and having non-reflecting layer, in that circumstances, the appellant has qualified the merit classification under CTH 7005 1090, therefore, we hold the correct classification of the Clear Float Glass imported by the appellant under the impugned Bills of Entry is classifiable under CTH 7005 1090. Consequently, the appellant is entitled for benefit of Sl. No. 934 (I) of Notification No. 46/2011-CUS dated 01.06.2011 25. In view of this, we conclude that the impugned orders deserve no merit, hence, the same are set aside and the appeals are allowed with consequential relief, if any. 11. In the instant case, a conjoint reading of the Tariff Heading, relevant Chapter Note, test reports and the manufacturing process would establish that there is a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long time by claiming classification under Tariff item 7005 1090 and there was no dispute in this regard except for the proceedings initiated in view of the CRA objection raised. It has been submitted that even after the CRA objection for period under dispute, the provisional assessments in respect of some Bills of Entry were yet to be finalised while in respect of other bills classification under CTH 7005 1090 was allowed. In the absence of any finding of positive suppression by the Appellant in the impugned order, we find that the allegation of wilful misclassification and intention to evade duty by the appellant is not at all tenable and misclassification could not be equated with misdeclaration within the meaning of Section 28 (4) of the Customs Act, 1962 as it is a settled law that once the goods are correctly described, the bona fide adoption of classification by the importer cannot be equated with misdeclaration as the importers are not expected to be fully conversant with the schedule to the Customs Tariff Act, 1975. In respect of this contention, the Ld. Counsel has relied on the cases of Northern Plastic Ltd. Vs. Collector of Customs Central Excise [1998 (101) ELT 549 (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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