TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 1150
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....l Unit ('DRI' for short), answerable to the Commissioner of Customs (Port), Customs House, 15/1, Strand Road, Kolkata - 700 001 & Commissioner of Customs (Port - Import), Chennai-V, Customs House, 60, Rajaji Salai, Chennai - 600001 (hereinafter referred to as 'the jurisdictional Commissioners' for short). 2.1 As per the SCN, DRI had got an intelligence that the applicant company had evaded Customs duty on imports of poultry/fish/shrimp feed making machinery and other related equipment and accessories for feed manufacturing plant by declaring them as poultry keeping machinery or machinery for preparing animal feed, stuff etc. 2.2 The SCN alleges that the applicant cleared six consignments of machinery by declaring and classifying the goods as under :- Sl. No. Bill of Entry No. and date Declared description of goods Port of import Customs Tariff Item Customs Excise Item 1 6313079, dated 2-8-2014 Poultry keeping machinery (supply of poultry feed, extruding fish feed, shrimp feed project) Kolkata 84362900 84362900 2 6424430, dated 13-8-2014 Poultry keeping machinery (supply of poultry feed, extruding fish feed, shrimp feed project) Kolkata 84362900 8436290....
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....visions of Section 28 of Customs Act, 1962 along with interest under Section 28AA. (iii) Goods of the declared CIF value, as indicated against respective entries in Column B, totally amounting to Rs. 25,83,64,715 should not be held liable for confiscation under Section 111(m). (iv) Penalty under Section 112(a) or Section 114A should not be imposed on the applicant for their wilful acts and omissions, as discussed above. (v) The amount of Rs. 3,42,87,491, voluntarily paid by the applicant during investigation should not be appropriated towards the aforesaid Customs duties, interest and any other dues payable by the applicant on their imports. 4. In the application for settlement, the applicant have admitted the duty liabilities, interest as demanded in the notice and that they made voluntary payments of Rs. 3,06,11,175 & Rs. 41,71,084 (total Rs. 3,47,82,259) towards their duty and interest liability pertaining to imports made at Kolkata & Chennai port respectively and the interest on the admitted duty liability of Rs. 3,14,40,182 (Rs. 2,85,45,240 at Kolkata + Rs. 28,94,942 at Chennai) comes to Rs. 32,13,76....
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.... and the same was received on 9-9-2015. 7. In his report dated 27-10-2015, the Pr. ADG, DRI, MZU, reiterated the modus operendi of the applicant, as mentioned above, for short and non-payment of Customs Duty. The Revenue has contested the settlement of the case on the following grounds :- (i) As per the case of Indirama Synthetics (India) Ltd. v. Union of India [2013 (290) E.L.T. 208 (Bom.)] the Settlement Commission is not a case where one can challenge the SCN on merits. (ii) Further, the classification cited by the applicant in view of the various Court judgments is not tenable. 8. However, they do not have any objection to the settlement of the matter subject to:- (i) Confirmation of duty and interest, as demanded by the SCN, which has been voluntarily deposited by the applicant. (ii) Imposition of appropriate fine and penalty, as deemed fit on the applicant for the violation of various provisions of Customs Act, 1962. (iii) Any other orders as deemed fit. 8.1 In his report dated 10-12-2015 under Section 127C(3) of the Act one of the Jurisdictional ....
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.... Kolkata Port (5 Bills of Entry) and Chennai Port (1 Bill of Entry) classifying the goods under Chapter Heading 8436, whereas according to the Department, The machineries imported through Kolkata Port are classifiable under CTH 8479 and those imported through Chennai Port are classifiable under CTH 9406. The goods are also classifiable under CETH 8479 and 9406.The misclassification resulted in short payment of duty because there is no C.V. Duty under 8436, whereas C.V. Duty @ 10% is leviable under 8479 and @ 12% under 9406. Consequently, there was short payment of duty along with applicable interest. During the course of investigation, the applicant deposited certain amounts towards duty and interest. 10.2 Though the short payment of duty is on account of wrong classification of the goods, claimed by the applicant, yet in the settlement application the applicant has accepted the classification of goods as contended by the Department. Thus, the Bench finds that the applicant is not debarred from approaching the Settlement Commission. 10.3 The applicant has accepted the duty liability and applicable interest. However, they have prayed for waiver of penalty and immunity fr....
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....aware of importance of HSN Explanatory Notes in the matter of classification. As such, there is a lapse on the part of the applicant to this extent and therefore the provisions of Section 111(m) and consequently Section 112(a) of the Customs Act are attracted. However, the allegation of wilful misstatement or suppression of facts is not sustainable so as to attract the provisions of Section 114A. The Bench also observes that the SCN has not invoked Section 114AA. 10.6 Regarding the short payment of interest and duty, as intimated by Commissioner of Customs, Kolkata in his report dated 10-12-2015, the applicant was asked under the Commission's letter dated 2-2-2016 to offer his comments. The applicant in his reply dated 10-2-2016 has intimated that they have paid the differential Customs Duty amounting to Rs. 1,57,280/- and interest amounting to Rs. 17,358/- and submitted copies of TR-6 Challans. 10.7 The Bench finds that the impugned goods are liable to confiscation but are not available for confiscation as they have not been seized. 11. In consideration of the above findings, the Bench holds that the applicant is liable to pay the duty demanded in the....