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TMI Blog2025 (2) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 06.12.2017 passed by Commissioner of Customs (Appeals), Bangalore. 2. The facts of the case are that the appellant M/s. Suntec Agri Equipment (I) Pvt. Ltd. imported certain machines declaring them as 'Power Weeders' initially classifying them under Chapter Heading 8433 and thereafter, suo moto changed the classification to Chapter Heading 8432 of the Customs Tariff Act, 1985 and claimed concessional rate of duty by availing the benefit of Notification No.12/2012-Cus. dated 17.03.2012. Revenue contended that the machines imported are 'Brush Cutters' and not 'Power Weeders' as claimed by the appellant, hence rightly classifiable under CTH 8467 and also the benefit of the above Notification not admissible. Accordingly, the original author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that claiming an incorrect classification or the benefit of an ineligible exemption Notification does not amount to mis-declaration. Since, the description of the goods is clearly mentioned, suppression cannot be invoked and hence, not liable for penalty also. 3.1 Relying on the decisions in the case of Tamil Nadu Housing Board Vs. Collector: 1999 (74) ELT 9 (S.C.) and M.K. Kotecha Vs. CCE 2005 (179) ELT 261 (S.C.), it is submitted that extended period of limitation cannot be invoked in the present case, as there was no suppression of facts or fraud involved. In view of this, the penalties also cannot be imposed as is held in the case of CCE and ST Hyderabad-II Vs. Sandor Medicaids Pvt. Ltd.: 2019 (367) ELT 486 (Tri. -Hyd.) and Lew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be 'Brush Cutters' and hence, the benefit of Notification was denied demanding a duty of Rs.3,91,930/- which was paid under protest by the appellant. On further investigation for the period 06.12.2010 to 23.07.2013, similar goods were found to be 'Brush Cutters' which were imported under concessional rate of duty, hence, the differential duty of Rs.26,43,951/- on the past clearances was also confirmed. With regard to past clearances, we find that Bills of Entry No. 4656425 dated 16.09.2011, 6559041 dated 17.04.2012, 6935540 dated 26.05.2012, 7280139 dated 03.07.2012, the appellant has declared the items as 'Brush Cutters' as also the description was correctly mentioned, therefore, the question of suppression does not arise. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court in the decision in cases of Commissioner of Customs (Import) v. Finesse Creation Inc. (supra), Commissioner of Customs (Import) v. Rishi Ship Breakers (supra) and Commissioner of Customs (Exports) v. Sudarshan Cargo Pvt. Ltd. (supra), have held that if the goods are not available for confiscation there cannot be any redemption fine. The Supreme Court has dismissed the SLP of the revenue in the case of Commissioner of Customs (Import) v. Finesse Creation Inc. [2010 SCC Online SC 1452 = 2010 (255) E.L.T. A120 (S.C.)]. In the instant case, admittedly the appellant/revenue could not find actual goods for confiscation and therefore, the order setting aside the redemption fine is in consistence with the decisions of this Court. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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