2015 (11) TMI 1501

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....ndent-assessee company is engaged in the business of manufacture and processing of Milk and Milk Products vide purchase contract. They have entered into with Thimonnier, France for import of Automatic Aseptic Machine for UHT Liquid Milk and Liquid Milk Products in Pillow Pouches. On arrival of the machine the respondent-assessee filed Bill of Entry on 21.5.2013 wherein claiming CVD benefit @0% under Sr. No.245 of the Notification No. 12/2012-CE. The goods were examined by the Docks Officials on 23.5.2013 along with SIIB (Imports) and asked to furnish catalogue and explain the goods. The importer had classified the goods under CTH 84341000. The respondent-assessee already clarified that it was bona fide mistake and they were ready to pay t....

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....e 10% will be kept under incubation at 37 deg C for 7 days and balance 90% will be kept at room temperature and opened at regular intervals of 4 days till shelf life. Acceptability Criteria : Leaking Rate <0.1% Standard Plate Count/ml/-Nil Spores :- Nil This is unintentional bona fide and inadvertently claimed, and withdrawn. Vide Order-in-Original dt. 7.6.2013 the matter was adjudicated, and it was held that there is mala fide intention on the part of the assessee and the assessee have given mis-declaration, and accordingly the machine was ordered to be confiscated, the value at Rs. 3,15,45,330/- under Section 111(m) of the Customs Act with an option to redeem the goods on payment of Rs. 15,00,000/- ....

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....rate of duty under Notification No. 21/2012-Cus dated 17.03.2012 however, department found the goods to be mis-declared and the same merit classification under CTH 53062010. The subject goods were adjudicated and confiscated and imposed redemption fine and penalty under Section 125 Section 112(a) & 114(A). The Hon'ble CESTAT has uphold the classification under CTH 53062010 but set aside the confiscation, fine and penalty. The Judgment given on the basis of some references mentioned in para 5.9 said judgment which are reproduced as under: "The last issue for consideration is whether the goods are liable to confiscation and consequently liable to fine and penalty. In the case of Northern Plastic case cited supra, the Honble Supreme ....

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.... the Order-in-Original. The further ground urged by Ld. AR is that CBEC Circular No.17/2011-Cus dated 8.4.2011 states, that the importer or exporter at the time of self-assessment will ensure that he declares the correct classification, applicable rate of duty, value, benefit of exemption notification claimed, if any, in respect of the imported/export goods while presenting Bill of Entry or shipping bill. Further ground is that the respondent-assessee have failed to take steps under new facility given by the Revenue like- &nbsp;(i) Seek assistance from Help Desk located in each Customs Houses, (ii) Refer to information on CBEC/ICEGATE web portal (iii) Apply in writing to the Assistant/Deputy Commissioner in charge of Appraising G....

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....self-assess the duty, if any, leviable on such goods. &nbsp;(2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. &nbsp;(3) For verification of self-assessment under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, brokers note, insurance policy, catalogue or other document, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, and thereupon, the importer, exporter or such ....

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....s etc. were available on record and the importer was co-operating with the Revenue by opting First Check basis. The assessment should have been completed under Section 17(4) or under Section 17(5). In this view of the matter passing of the Order-in-Original was incorrect exercise of power under the scheme of the Act. He further states that the order of the Commissioner (Appeals) does not require any interference. The Commissioner (Appeals) has rightly held that there is no mala fide claim made by the importer and accordingly was pleased to set aside the redemption fine and penalty. The respondent further relies on the ruling in the case of S.Rajiv & Co. Vs. Commissioner of Customs (CSI Airport), Mumbai 2014 (302) ELT 412 (Tri.-Mumbai) where....