2019 (5) TMI 2024

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....y AKD wax was classified by the importer the under CTH 38099200. The Department entertained a view that the correct classification of the product imported by the appellant is under Customs Tariff Heading 34049090, it was also felt by them that the appellant have mis-classified the imported product with a malafide intention to evade Customs duty. 2. The department has been of the view that heading 3809 provides as follows: Finishing agents, dye carriers to accelerate the dyeing or fixing of dyestuffs and other products and preparations (for example, dressings and mordants), of a kind used in the textile, paper, leather or like industries, not elsewhere specified or included. Thus it is apparent that heading 3809 provides only for merchandise "not elsewhere specified or included" and is a generic heading. On the other hand, heading 3404 provides as follows: artificial waxes and prepared waxes. The item under import is Alkyl Ketene Dimer Wax and wax is classifiable under CTH 34049090 hence it appears that the importer has classified the imported goods under Chapter Heading 3809 with an intention to evade customs duty. 3. A Show cause notice No. VIII/ICD/TKD/6AG /519/2015 dated 29.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... of interpretation and the classification of the product AKD. The classification of the product namely, AKD declared by the appellant under Chapter sub heading 38099022 is based on chemical analysis report by Shriram Institute of Industrial Research and Institute of Chemical Research, Mumbai and Institute of Chemical Technology. As both the reports have confirmed that the impugned goods are nothing but paper sizing agents and not artificial wax. (iii) It has also been contended by the learned advocate that Department has tried to change the classification of the impugned product without having any concrete evidence or chemical test report for changing the classification to Chapter sub-heading 34049090 . It has further been added that extended time period cannot be invoked in their case as the department was aware of the matter since 2012 itself, knowing it fully well that the appellant have been claiming the classification of this product i.e. AKD under CTH 3809 9200. It has been submitted that a Bill of entry No. 7353695 dated 10.7.2012 was filed by the appellant wherein the Department has disputed the classification of AKD under CTH 38099220 and the appellant was asked to chang....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....1995 (78) ELT 401(SC)]; 5. Orissa Bridge & Construction Corpn. Ltd. Vs. CCE, Bhubaneswar [2011 (264) ELT 14 (SC)]; 6. Aban Loyd Chiles Offshore Ltd. Vs CC, Maharashtra 2006 (200) ELT 370 (SC)]; 7. CCE, Indore vs. Synocom Formulation (I) Ltd. 2004 (172) ELT 77 (Tri-Del)]; and 8. Gammon India Ltd. Vs CCE, Goa [2002 (146) ELT 173 (Tri-Mumbai)]. (v) It has further been argued that the classification being matter of interpretation and the appellant having valid ground to classify their product under Chapter 38 as the end use of the product was for the paper industry, they were entitled to adopt the classification which was more appropriate as per the test reports given by Technical Institutes as well as the supplier of the product. The Department merely trying to classify the import product under a different Chapter sub heading does not mean that the appellant have mis-declared their product at the time of import. Since the classicisation is a matter of interpretation and all the facts have been before the Department since very beginning, the extended time proviso for demanding duty after re-assessment of the product under a different Chapter heading is not legally sustainable....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....er and if they wanted to change the same, they should have drawn the required samples and got the same tested from recognised laboratories to get ascertain the true nature of import product and its appropriate classification and so could have changed the classification from CTH 3809 to 3404 if they possessed any concrete evidence to support it. However, we find that the Department has not taken any corrective action during the period from May, 2011 to 18 December, 2015. We further find that Show cause notice cum demand notice has also been issued to the appellant vide F No. VIII/ICD/TKD/6AG/519/2015 dated 18 December, 2015 wherein differential amount of duty has been demanded on the Bills of Entry covering the period from 18.12.2014 to 16.06.2015, wherein the differential amount of Customs duty amounting to Rs. 16,14,391/- has also been demanded for wrong classification of the product under Chapter 3809. 8. From the above facts, it is very clear that all the facts regarding importation, description of the product and its classification were in the knowledge of the Department. The Audit which was conducted after the clearance of the import consignment also raised this issue of clas....