AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 485
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....y interest of Rs. 18,17,863/- (Rupees eighteen Lakhs Seventeen Thousand Eight Hundred and Sixty Three Only) on 6 Bs/E and the interest as applicable on the rest 2Bs/E leviable under Section 28AB of the Customs Act, 1962. iii. I hold the goods imported under 8 Bs/E liable for confiscation under section 111(o) of the Customs Act, 1962, but in absence of the goods available with the department, I do not confiscate them. iv. I impose penalty of Rs. 49,49,505/- (Rupees Forty Nine Lakhs Forty Nine Thousand Five Hundred and Five Only) on M/s Advance Spectra Tek Pvt Ltd under section 114A of the Customs Act, 1962. v. I impose a penalty of Rs. 30,00,000/- (Rupees Thirty Lakhs only) under Section 112(a) of the Customs Act, 1962 on M/s Advance Spectra Tek Pvt Ltd." 2.1 Appellants have filed 8 Bill of Entries during the period 15.03.2000 to 18.10.2001. for import of "Danload 6000 Electronic Preset Flow Metering Equipment and Its Parts". The classification of goods was sought under CTH 9026.80 for Danload 6000, CTH 9026.90 for its part and 8524.90 for configuration software. The goods were accordingly assessed and cleared on payment of Customs duty @ (10% BCD + 16% CVD +4% SAD). 2.....
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....cation of imported Danload 6000 will be in CTH 9026.80 and its part in 9026.90 and configuration software in CTH 8524.90 in view of the terms of said heading and chapter Note 6 to Chapter 85. ii. The order of Commissioner is bad in law, because against the duty demand of Rs. 3355461/- (Rupees Thirty Three Lakhs Fifty Five Thousand Four Hundred and Sixty One Only) in Show Cause Notice, Commissioner has confirmed the demand of Rs. 49,49,505/- (Rupees Forty Nine Lakhs Forty Nine Thousand Five Hundred and Five Only). Reliance placed by the Commissioner on section 154 of the Customs Act, 1962 for justifying the confirmation of duty demand more than that stated in Show Cause Notice is totally misplaced. iii. Demand is barred by limitation as they have not suppressed anything from the department hence invocation of longer period of limitation as per proviso to section 28(1) is not justified. Even if the limitation is to be counted from the date of knowledge and start of enquiry, then also three years delay in issuance of Show Cause Notice cannot be justified and be a reason for invoking extended period. They rely on the Apex Court decision in case of Nizam Sugar [2006 (197) ELT 466 ....
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....d vie order No M/85066/2018 dated 29.01.2018. He further submits that catalogue of the of the imported goods describe the product as Danload 6000 Electronic Preset and not as "Danload 6000 Electronic Preset Flow Metering Equipment". The appellants have in the import documents deliberately added the words "Flow Metering Equipment" with sole purpose of misclassifying the same. Since the appellants have deliberately misdeclared the goods with intention to evade payment of duty, extended period of limitation has been rightly for making the demand. 5.1 We have considered the submissions made in appeal and by both the parties during the course of argument along with the impugned order. 5.2 We find that issue can be decided on the ground of limitation itself as the show cause notice demanding the duty in respect of imports made vide bill of entries filed during the period 15.03.2000 to 18.10.2001 was issued on 11.03.2005. For making the allegation of suppression against the Appellant, para 16, 17 & 18 of the show cause notice states as follows: "16. It is evident from the above that the correct description and details of the equipment DANLOAD 6000 was deliberately suppressed by M/s....
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....nt of duty serve the show cause notice on the person chargeable with the duty short levied. From the records, I find that this is a clear case of wilful mis-statement and suppression of facts by the importer. They have deliberately classified the goods under 9026.80 and to claim the classification under 90.26 they have given the description of the goods as Danload 6000 Electronic Present Flow Metering Equipment. They have consciously done so, so that the department would confuse Danload 6000 Electronic Preset with 'Flow Meter' simplicitor because of the language 'Flow Metering Equipment' used. And as flow metres are specifically included in the tariff description of chapter heading 90.26, the department will not raise any doubt about the classification under 90.26. If their intention would have been bonafide and they were of the genuine belief that the equipment is akin to (That is why they have relied on Moorco case dealing with flow meter) flow meter, they should have honestly declared the classification under CTH 9026.10 which is "for instruments and apparatus for measuring or checking the flow or level of liquids" which carries the BCD rate of 25% adv. instead of CTH 9026.80 un....
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....cts including the catalogues relied upon in show cause notice were made available to revenue as early as in 2002, the delay in issuance of show cause notice could not be justified. We are of the view that case of appellant on the issue of extending period of limitation is squarely covered in their favour by the decision of the Hon'ble Apex Court Magus Metal P Ltd [2017 (355) ELT 323 (SC)], wherein it has been held that "6. Insofar as the order of the learned Tribunal holding the show cause notice dated 18-3-2003 to be time barred in the six appeals referred to above, we do not find any error in the order of the Tribunal and its conclusions in arriving at the said conclusion. The 'normal' period of limitation for issuing a show cause notice under Section 28 is one year from the due date and unless there is suppression of facts or misstatement, the extended period of limitation will not be attracted. In the present case, the show cause notice, dated 18-3-2003 in respect of the earlier consignments, admittedly, is beyond one year. Such notice beyond the normal period of limitation could have been issued only if there have been suppression of facts. If, from the show cause notice, d....
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....all the goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence." 5.5 In case of Easland Combines [2003 (152) ELT 39 (SC)], Hon'ble Apex Court held as follows: "29. It is settled law that for invoking the extended period of limitation duty should not have been paid, short levied or short paid or erroneously refunded because of either fraud, collusion, wilful mis-statement, suppression of fact or contravention of any provision or rules. This Court has held that these ingredients postulate a positive act and, therefore, mere failure to pay duty and/or take out a licence which is not due to any fraud, collusion or willful mis-statement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation." 5.6 Thus in view of the law laid down by Hon'ble Apex Court i....