TaxTMI 
TaxTMI 
2017 (9) TMI 1092
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....o Rs. 9,17,89,622/-, that the same is payable, but has not been paid by the petitioner due to willful mis-statement and misclassification under the provision of Section 28 along with interest under Section 28AA of the Customs Act, 1962, (hereinafter referred to the Customs Act), and ordered confiscation of the goods covered under the Bills of Entry with option for redemption on the payment of redemption fine of Rs. 5,00,00,000/- in lieu of confiscation under Section 125(1) of the Customs Act, as the goods were already released provisionally, and imposed a penalty of Rs. 9,17,89,622/- with applicable interest on the petitioner in W.P.No.40081 of 2015 (hereinafter referred to as 'L&T MR'), under Section 114A of the Customs Act and imposed a penalty of Rs. 1,00,00,000/- on the petitioner in W.P.No.40082 of 2015 (hereinafter referred to as 'Hyundai'). 2. As against the order impugned, the petitioners have a remedy by way of an appeal before the CESTAT. The Writ Petitions have been filed challenging the impugned order as being passed in violation of principles of natural justice; that the first respondent is bound by the International legal obligations entered into by....
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....exure-II, the India-Korea Comprehensive Economic Partnership Agreement. The impugned order while placing reliance on the invoices and other documents had erred in placing reliance only on portion of the same, while ignoring the other part ,which is contrary to the settled principle that one cannot approbate and reprobate. The above are broadly the grounds on which the impugned order has been challenged. 3. Mr.C.Natarajan, learned Senior counsel for the petitioner submitted that though the impugned order has been challenged on several grounds, he would restrict the grounds of challenge to two, namely, that the Courts will give due weightage to the obligations contain in bilateral treaties entered into between the two countries and in the instant case, the treaty between the India and Korea, which was reduced into writing called as India and Korea Comprehensive Economic Partnership Agreement and under Article 5.1 of the treaty, both countries agreed to administer their import and export processor for goods traded under the agreement on principles that procedures be simplified and harmonized on the basis of international standards, while recognizing the importance of balance betwee....
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....d System and the said committee opined as follows:- 8603.10 1. Three uncoupled railway coaches, comprised of two electrically propelled M-Cars and one trailer T-Car, each being 22.6m long, 2.9m wide, and 3.8m high. After coupling, the three coaches, also known as an Electric Multiple Unit (EMU), are intended to be used in a distributed traction system for an urban railway. A pantograph in the upper part of the T-car provides electricity, which passes through the main transformer and is transmitted to converters in the M-Cars. The converters transformer the electric current from AC (alternating current) to DC (direct current) and send it to inverters, which change the DC into three-phase AC to activate the electric motors. 5. It is submitted that though the opinion was rendered w.e.f. 01.01.2007, it has to be given due weightage and supports the classification adopted by the petitioner. Thus, it is submitted that the first respondent, while adjudicating the show cause notice, has observed that the materials placed by the petitioner, namely, the classification as approved by the Korean Customs was not called for by the Department and they have not sought for any advice fr....
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....-S-PR coach had mis-declared the same as self-propelled coaches falling under CTH 8603 1000 instead of classifying the same under CTH 8605 0000 and not entitled for the benefit of the exemption notification No.152/2009-CUS, dated 31.12.2009. It is further submitted that the Tariff Act does not contain any tariff entry as train sets, as alleged by the petitioner and on investigation, it was found that the petitioner inspite of having specific knowledge of the tariff entry CTH 86031000 and CTH 86050000 had deliberately mis-declared the goods with an intention to evade payment of duty. It is submitted that when the petitioner's invoices makes a clear distinction with regard to the price and the nature of goods imported by L&T MR sold by Hyundai, the action of filing the bill of entry as same for the both the goods lacks bonafide. Further, it is submitted that without filing an appeal before the CESTAT under Section 129A of the Act, the petitioners have filed the present Writ Petitions, which are not maintainable. It is further submitted that the issue involves classification of goods and this Court even in exercise of its appellate jurisdiction under Section 130 of the Customs Act....
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....ronics reported in (2010) 225 ELT 490. 9. Mr.T.Pramod Kumar Chopda, learned Senior Panel counsel for the Customs while adopting the arguments of the learned Panel counsel for DRI referred to the counter affidavit filed by the respondents to the additional grounds raised by the petitioner by placing reliance on the classification ruling rendered by the World Customs Organisation (WCO), in 57th session of the Harmonized System Committee, wherein according to the petitioner, the electric multiple unit has to be classified as a single unit under CTH 8603 as opposed to each car assessed separately before March 2016 in the impugned order, dated 25.09.2015. It is submitted that the contention raised by the petitioner is misconceived, as it is not relevant to the period of import, which being prior to March 2016, as the bill of entry was filed on 13.10.2014, after which the order of adjudication has been passed on 25.09.2015. The settled law is that the applicable rate of duty is as on the date of import and clearance of goods by filing the bill of entry, which is admittedly on 13.10.2014, whereas the opinion of the Harmonized System Committee was in March 2016. Further, it is submitted....
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.... of the each car separately does not mean that the cars have to be classified under different headings; that once goods have been cleared for home consumption redemption fine is not imposable. Further, the imported goods can no longer be confiscated and the same cannot be done even by invoking the power vested with the Commissioner under Section 129D of the Customs Act; that the penalty cannot be levied and the proposal in the show cause notice is not sustainable. Personal hearing was afforded to the authorised representatives of both the L&T MR and Hyundai. The first respondent has adjudicated the case and passed the impugned order holding that the trailer coaches are classifiable under CTH 8605 and not as CTH 8603, as classified by the petitioner and confirmed the proposal in the show cause notice by levying customs duty, ordering confiscation with option to redeem on payment of redemption fine and apart from imposition penalty on both the petitioners. 13. Mr.C.Natarajan, fairly submitted that as against the impugned order, the petitioner has a remedy of an appeal before the CESTAT, but the petitioner is before this Court challenging the impugned order as there is serious erro....
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....pertains to determination of the value or regarding the classification of the goods (good), whether this Court exercising jurisdiction under Article 226 of the Constitution would be justified in testing the correctness of the impugned order. 18. In the case of Commissioner of Customs (Exports), Chennai vs. D.S.Metal (P) Ltd., (supra), an appeal was preferred by the Revenue challenging the order passed by the CESTAT setting aside the demand by allowing the benefit of an exemption notification in favour of the respondent importer having fulfilled post importation condition of submitting end-use certificate. The Division Bench while considering as to whether appeal was maintainable on such an issue referred to the decision of the Hon'ble Supreme Court in the case of Navin Chemicals Manufacturing and Trading Co., Ltd., vs. Collector of Customs, reported in 1993 (68) ELT 3 (SC) and held that the issue which arise for consideration is what will be the rate of duty that is payable by the importer, but for the notification in question and by applying the law in the case of Navin Chemicals Manufacturing and Trading Co., Ltd., (supra), and taking note of Section 130 of the Customs Act....
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....29 of the impugned order is not well worded. The sentence the department has not called for any such clarification or advice from them should not be read in isolation, but should be read in conjunction with the other observations made by the first respondent in the earlier and subsequent paragraphs. If it is so read, the picture that emerges is the adjudicating authority came to the conclusion, that the classification as done by the Korean Customs will not bind them and they are bound by the Indian Customs Laws and the Tariff Act and the Rules and Regulations governing the classification. Therefore, it cannot be stated that the decision making process is flawed on account of an observation made in paragraph 29 of the impugned order. Therefore, on that ground, this Court cannot exercise its jurisdiction under Article 226 of the Constitution. 23. Much emphasis was laid on the India Korea Comprehensive Economic Partnership (Treaty) to demonstrate that both the countries should assist each other in the tariff classification, valuation and determination of origin of goods for the purpose of preferential tariff treatment and each party shall notify the other party in writing, the clas....