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TMI Blog2024 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... that the importer had misclassified the goods to be imported. But penalties are not imposable in every case of mis-declaration. Law has been settled that mis-classification is different from mis-declaration. This Tribunal Calcutta Bench in the case of Unique Plastic Industries vs. Commissioner of Central Excise Calcutta reported in [ 2002 (6) TMI 273 - CEGAT, KOLKATA] has held that wrong claim of classification or availing wrong benefit of exemption Notification by itself does not amount to suppression or mis-declaration unless there are certain facts which were required to be disclosed by the assessee but have not been disclosed. The Delhi Bench of this Tribunal also in the case of KIRTI SALES CORPN. VERSUS COMMR. OF CUS., FARIDABAD [ 2008 (5) TMI 555 - CESTAT, NEW DELHI ] has held that to constitute misdeclaration the declaration must be intentional. Misdeclaration cannot be understood as same as wrong declaration. The imposition of penalty cannot be automatic. It has to pass the test of mens-rea as has been held by Hon ble High Court of Punjab and Haryana in the case of COMMISSIONER OF CUSTOMS, AMRITSAR VERSUS KAMAL KAPOOR [ 2006 (12) TMI 152 - HIGH COURT OF PUNJAB HARYANA AT CH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f charge of this consignment it was observed from the import documents that the importer had classified the goods under CTH 15079010 which covers the refined soyabean oil of edible grade but the goods in question was LC PUFA Mix Oil. The Mixed Oils are not covered under the CTH 150721515. The appropriate heading for classification of mix oil is CTH 15179090. Since the supplier of goods also mentioned the CTH 1517.90 in their invoice, the Department formed an opinion that the goods have wrongly been classified. Accordingly, the goods were seized under section 110 of the Customs Act 1962 on the reasonable belief that the same are liable to confiscation under section 111 of the Act. 1.1 The importer in the statement had accepted the classification under CTH 1517.90 even for the past 6 Bills of Entry and thus deposited a sum of Rs.38,43,921/- (including interest) which includes the amount involved in the Bill of Entry in question. The Department, however, found 19 past Bills of Entry having similar wrong declaration and involving an amount of Rs.2,46,75,612/-. Alleging that the importer deliberately and intentionally classified their goods under wrong CTH to evade the Customs duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry was definitely upon the Department. Even for the Bills of Entry post 8th April, 2011, the law remains same that the burden is on the Department to prove the allegations. Absence of any evidence is sufficient to show that penalty has wrongly been imposed upon the appellants. 3.2 It is further mentioned that, in fact, there is no allegation in the Show Cause Notice that the appellant was the interested party. Hence the adjudicating authority has committed an error while concluding against the appellant, that too, beyond the scope of Show Cause Notice. Ld. Counsel further has mentioned that the penalty imposed under section 112 (e) is not sustainable as the said provision has 5 sub-clauses but the show cause notice has not specifically invoked any of those clauses. The order imposing penalty is therefore liable to be set aside for want of specific allegations in the Show Cause Notice. With respect to penalty imposed under section 114AA of the Act it is impressed upon that appellant had no role in classification of the goods. Importer only had to decide FSSAI clearance was also to be taken by the importer. The appellant filed the Bill of Entry under the bonafide belief that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment that they have imported a number of items for manufacture of their final products. Since the product imported was composed of 3 vegetable oils and was of food grade suitable for application in nutritional products that the importer was under bonafide impression that the product imported is classifiable under 1507. However, on being pointed out the importer initiated the process of re-considering the classification not only this had voluntarily deposited the differential duty of Rs.38,43,921/- with respect to the past 6 bills of entry as brought to notice by the Department. These facts are sufficient for us to hold that the importer had misclassified the goods to be imported. But penalties are not imposable in every case of mis-declaration. 5.1 Law has been settled that mis-classification is different from mis-declaration. This Tribunal Calcutta Bench in the case of Unique Plastic Industries vs. Commissioner of Central Excise Calcutta reported in 2002 (145) ELT 604 has held that wrong claim of classification or availing wrong benefit of exemption Notification by itself does not amount to suppression or mis-declaration unless there are certain facts which were required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962. The order imposing penalty is therefore liable to be set aside for the said reason. Also for the reason that the Show Cause Notice has not invoked the specific sub clause of section 112B. The Apex Court in the case of Amrit Food vs. Commissioner of Central Excise reported in 2005 (190) ELT 433 (SC) has held that when a particular clause of the provision has not been invoked in the Show Cause Notice nor has been specified in the adjudication order. The order imposing penalty is waived and is liable to be set aside. 7. Coming to the penalty imposed under 114 AA the objective of section 114AA as was subsequently incorporated, is apparent from 27th report of the Standing Committee on Finance (2005) which proposed this new section consequent to the deduction of several cases of fraudulent export where the exports were shown only on paper and no goods crossed the Indian boarder. The Committee opined introducing provisions of levying penalty upon 5 times the value of goods as a right deterrent the Constitution Bench of Hon ble Supreme Court in the case of Kalpana Mehta Vs. Union of India in Civil Writ Petition No.558 of 2012 has held that the Parliamentary Committee Report is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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