TaxTMI 
TaxTMI 
2015 (12) TMI 1000
X X X X Extracts X X X X
X X X X Extracts X X X X
....13711 and rejected the classification of CTH 50079090 claimed by the appellant. Adjudicating authority also denied the benefit of Notification No.30/2004-CX dated 09.07.2004 to all the items of Bill of Entry No.7135365 dated 21.10.2014 to determine a total duty liability of Rs. 78,88,149/-. The goods imported were confiscated under sections 111(m) and 119 of the Customs Act, 1962 and allowed redemption on payment of Rs. 13.00 Lakh as (Rs.9 Lakh + Rs. 4 Lakh) as redemption fine under section 125 of the Customs Act, 1962. Besides penalty of Rs. 15 Lakh upon the main appellant and Rs. 20 Lakhs (Rs. 13 Lakhs + Rs. 7 Lakhs) upon Shri Aditya Sarda were imposed under section 112(a) and 114AA of the Customs Act, 1962 by the Adjudicating Authority. 2. Shri S.K.Mehta (Advocate) appearing on behalf of the appellant, as well as through written submissions, argued that conditions of provisional release of imported goods were highly unreasonable, therefore, appellant did not get the imported goods provisionally released. That amendment of Bill of Entry was sought after receipt of a letter dated 03.11.2014 (page 35 of Appeal Memo) from the supplier of imported goods. That first amendment was sou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8013720. It was also argued by the learned Advocate that uncut pile velvets like Epingle do exist in technical literature/Textile Dictionary and findings of Adjudicating authority that all categories of velvets will fall under 58013711 is fallacious and should be set aside. That admissibility of Notification No.30/2004-CE and payment CVD was required to be decided in conformity with law and based on case laws under which benefit of Notification No.30/2004-CE was extended to similar imports. He relied upon case laws of Apex Court and Tribunals to argue that no credit on the inputs used in the manufacture of imported goods is taken as the goods are not manufactured in India. In support of his argument Learned Advocate made the bench go through a recent case law of Apex Court in the case of SRF Ltd. v. CC, Chennai [2015(318) ELT 607(SC)]=2015-TIOL-74-SC-CUS. 2.2 On the issue of confiscation of imported goods and imposition of penalties it was argued by the learned Advocate that appellants came to know of wrong supply of goods through an e-mail from the supplier and accordingly sought amendment in the Bill of entry as per E-mail intimation. That amendment in description sought was als....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncerned? (iv) Whether confiscation of goods and imposition of penalties have been correctly adjudicated by the adjudicating authority? 5. Regarding point mentioned at para 4(i) above is concerned there is a dispute between the appellants and the Revenue. It is the case of the Revenue that application for amendment was not made on 03.11.2014 but was received only on 10.11.2014. Appellant on the other hand contend that oral request was made on 03.11.2014 and the statement of the CHA and statement of Shri Aditya Sarda recorded by DRI clearly mention this aspect. It is observed from the case records that an e-mail dated 03.11.2014 was received by the appellant M/s.Chemsilk Commerce Pvt.Ltd. from the seller Zhejiang Cathaya Transtra Co.Ltd., 105, TI Yu Chang Road, Hangzhou, China. The content of this letter is as follows:- "While tallying with our stocks manager at the warehouse in Hangzhou, it came to our notice that 25487.70 Mtrs Silk Mixed dyed and unprinted " 130 Grams per meter width 44" which was sent to you under our Invoice No.RS14TE050104 dated September, 28, 2014 was not shipped and by mistake packers and dispatchers at our warehouse dispatched the quantity out of other s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the intelligence received by DRI. 6. So far as the classification of goods imported at Item No.8 of the Bill of Entry are concerned the samples of the goods were drawn and sent to Textiles Committee, Ministry of Textiles, Govt. of India, Mumbai who confirmed the same to be "warp cut Pile" fabrics. It is the case of the Revenue that all categories of "velvet" fabrics has to be classified under CTH 58013711 irrespective of the fact whether Pile yarn is cut or uncut. Appelalnt on the other hand argued that "warp cut pile" velvet has to be classified under CTH 58013720 and there are "uncut pile" velvets in the market, like Epingle velvet, as per the technical literature and dictionary meanings. It is observed from the Customs Tariff Act, 1985 that CTH 580137 covers all warp fabrics of man made fabres. This tariff description along with its sub-classifications are as follows:- CTH Description Rate of Duty 5801 37 Warp pile fabrics : 10% or Rs. 140 per sq.metre, whichever is higher 5801 37 11 Warp pile fabrics, "epingle" (uncut) 10% or Rs. 140 per sq. metre, whichever is higher 5801 37 19 Velvet 10% or Rs. 68 persq. Metre, whichever is higher 5801 37 20 Other 10% or Rs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and 58013719 but all such uncut pile fabrics need not be known as velvets. On the other hand warp pile fabrics (including cut velvet) will be classifiable under CTH 58013720. Scientific literature furnished by the appellant do indicate that there are categories of uncut pile fabrics in the market which are also known as velvets (Epingle & Terry Velvet). Corresponding entries under Customs Tariff for Cotton Velvet fabrics are 5801 2710 & 5801 2720 but the word "velvet" has not been mentioned in these classification at all. The crucial words are "warp pile fabrics, cut" (58012710) & other (5801 2720). Thus more important in the classification of a fabric under 5801 3711/19 and 5801 3720 will be the "cut" or "uncut" nature of "warp pile". Accordingly we are of the considered opinion that stand of the Adjudicating authority and the learned A.R., that all categories of "velvet" fabrics will invariably fall under 5801 3711, is not correct and is rejected. It is held that classification of goods at Item No.8 of bill of entry will be under 5801 3720. However, differential basic customs duty is required to be worked out by the appropriate assessing authority to complete the assessment. 7. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under the Cenvat Rules is not admissible to the appellant, question of fulfilling the aforesaid condition does not arise. In holding so, it followed the judgment of the Bombay High Court in the case of "Ashok Traders v. Union of India" [1987 (32) E.L.T. 262], wherein the Bombay High Court had held that "it is impossible to imagine a case where in respect of raw nephtha used in HDPE in the foreign country, Central Excise duty leviable under the Indian Law can be levied or paid." Thus, the CEGAT found that only those conditions could be satisfied which were possible of satisfaction and the condition which was not possible of satisfaction had to be treated as not satisfied. 7. We are of the opinion that the aforesaid reasoning is no longer good law after the judgment of this Court in "Thermax Private Limited v. Collector of Customs (Bombay), New Customs House- [1992 (4) SCC 440 = 1992 (61) E.L.T. 352 (S.C.)] which was affirmed by the Constitution Bench in the case of "Hyderabad Industries Limited v. Union of India" [1999 (5) SCC 15 = 1999 (108) E.L.T. 321 (S.C.)]. In a recent judgment pronounced by this very Bench in the case of "AIDEK Tourism Services Private Limited v. Commissione....