9911796707
TMI Blog2025 (3) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no suppression of fact established against them in this case and hence the notice should have been adjudicated within 6 months from the date of issue of the notice. It is found that the said notice has been issued by invoking extended period of limitation. The appellant had enjoyed BCD exemption provided under Notification No. 10/2008- Cus. dated 15.01.2008 on the imported goods, Polystyrene GPPS 1450, based on the Certificate of Origin issued by the designated authority of the Country of export i.e., Singapore in respect of the earlier 17 Bills of Entry. However, in respect of the last Bill of Entry No. 4199210 dated 29.11.2017, the sample was tested and found to be in 'Granular Form' - the Department has applied the test report received in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017 for all the previous imports and charged Customs duty on all the 18 Bills of Entry, which is legally not sustainable. It is observed that the test report received in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017 is applicable only for that Bill of Entry and the same cannot be applied to all previous imports. The test report in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of plastic material under the category of 'Polystyrene GPPS 1450', from Singapore. Out of such imported materials they manufacture excisable goods namely, GPPS Sheets in their factory at Domjur, Howrah, for subsequent sale in the market. 1.1. The appellant has filed the Bill of Entry No. 4199210 dated 29.11.2017 by declaring the description of the goods imported as ''Polystyrene GPPS 1450" in powder form and classified the said goods under CTH 39031990, as mentioned in the Country Of Origin Certificate (COO) issued by the exporting country namely, Singapore. The appellant claimed exemption form BCD under Notification No. 10/2008-CUS dated 15.01.2008, as amended by Notification No. 53/2015-CUS dated 23.11.2015. The department was of the view that the goods imported by the appellant are Polystyrene in 'granular form' which is liable to be classified under the CTH 39031990 attracting BCD @ 4.45%. Accordingly, the Customs Officers drawn samples and sent the same for testing to Central Institute of Plastics Engineering & Technology, Haldia. As per the test report received, the imported goods were Polystyrene in 'granular form'. 1.2. On the basis of the test report received in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty amount. (e) Penalty of Rs. 73, 77, 740/- was imposed under Section 114A of the Customs Act, 1962 on M/s. Honey Vanijya Pvt. Ltd. (f) Penalty of Rs. 10, 00, 000/- was imposed under Section 1114AA of the Customs Act, 1962 on Shri Rushab Thakker, Director of the Company. 1.5. Aggrieved against the confirmation of the demands of customs duty along with interest and imposition of penalty against them, the appellant- company has filed an appeal before this Tribunal. Shri Rushab Thakker, Director of the appellant-company, has also filed a separate appeal against the imposition of penalty on him. As both these appeals emanate from the same order, both are taken up together for decision by a common order. 2. It is the submission of the Ld. Counsel appearing on behalf of both the appellants that the appellant-company have imported all the material in respect of the 17 previous Bills of Entry from Singapore and the same were submitted before the customs authorities along with COO Certificate (AIFTA Certificate) as issued by the Designated Authority of the Country of Export i.e. Singapore; they have classified the goods on the basis of classification done by the Designated Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2008 as amended and the Certificate of Origin issued by the designated authority of the Country of export i.e. Singapore in respect of the earlier 17 Bills of Entry; however, in respect of the last B/E 4199210 dated 29.11.2017, the sample was tested and found to be in 'Granular Form' and accordingly, the Department alleged that all previous imports were also 'Polystyrene in granular form', classifiable under CTH 39031990 and not under 39031910 which relates to 'Polystyrene GPPS 1450' in powder from. In this regard, the appellant points out that after the receipt of the test report, as per the insistence of the Department, they paid the customs duty without the benefit of exemption provided under Notification No. 10/2008-Cus dated 15.01.2008. The appellant submits that such findings to the effect that the imported materials as per the said B/E 4199210 dated 29.11.2017, were in granular form, cannot be the basis for raising demand in respect of the imported materials covered under the 17 other Bills of Entry, in which cases no samples were drawn for chemical test; however, the Department has charged Customs duty along with other consequential effects on all the 18 Bills of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 months from the date of issue of the notice i.e., on or before 05.01.2019, but the impugned order has been issued on 04.02.2019, which is beyond the statutory period of six months. Therefore, it is their contention that, in absence of any suppression, the impugned order has become a nullity, as per Section 28(9)(a) of Customs Act, 1962, as amended w.e.f. 28.03.2018. 5.2. For the sake of ready reference, Section 28(9) of the Customs Act, 1962, as it existed during the relevant period, is reproduced below: "Section 28 (9):The proper officer shall determine the amount of duty or interest under sub-section (8), - (a) within six months from the date of notice, where it is possible to do so in respect of cases falling under clause (a) of sub- section (1); (b) within one year from the date of notice, where it is possible to do so in respect of cases falling under sub-section (4)." 5.3. We observe that when suppression clause is invoked, the Show Cause Notice is to be adjudicated within a period of one year from the date of issue of the notice. In this case, the Notice was issued on 05.07.2018. It was adjudicated within one year. The submission of the appellant in this regard is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aising demands in respect of the imported materials covered under the 17 other Bills of Entry, for which no samples were drawn for chemical testing / analysis. However, the Department has applied the test report received in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017 for all the previous imports and charged Customs duty on all the 18 Bills of Entry, which is legally not sustainable. We observe that the test report received in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017 is applicable only for that Bill of Entry and the same cannot be applied to all previous imports. We find that this view is supported by the decision given by this Tribunal in the case of Shalimar Paints Ltd. v Commissioner of Central Excise, Calcutta [2001(134) E.L.T. 285 (Tri.-Kolkata)], which has been subsequently upheld by the Hon'ble Supreme Court as reported in 2002(145) E.L.T. A242 (SC). The relevant part of the said decision is reproduced below : "7. The first grievance of the appellant is that though the classification lists in question covered about 30 products, test reports relatable to only 4 products are available and there is absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll of Entry No. 4199210 dated 29.11.2017. Consequently, the order of confiscation and imposition of redemption fine in this regard is upheld. 6.2. Since the demand of Customs duty in respect of the 17 Bills of Entry pertaining to past imports is found to be not sustainable, the demand of interest and imposition of penalty on the differential duty confirmed on this count against the appellant-company is also not sustainable and accordingly, the same are set aside. Since, the mis declaration alleged in the previous 17 imports is not established, we also hold that the said goods imported vide those 17 Bills of Entry are not liable for confiscation. 6.3. Regarding the penalty of Rs. 10, 00, 000/- imposed on Shri Rushab Thakker, Director of the Appellant-Company, under Section 114AA of the Customs Act, 1962, we observe that it is his contention that he had declared the same description in the Bills of Entry as had been mentioned by the exporter in the Country of Origin Certificate. However, mis-declaration with intention to evade Customs duty has been established in this case in respect of the goods imported vide Bill of Entry No. 4199210 dated 29.11.2017. Hence, we are of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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