TaxTMI 
TaxTMI 
2021 (12) TMI 90
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilable to the appellant as Modvat Credit ? 3. The aforesaid substantial questions of law arise in view of the challenge raised by the appellant-Assessee to the order dated 13.12.2016 passed by the Customs, Excise and Service Tax Appellate Tribunal - Tribunal thereby dismissing the appeal preferred by the Assessee and upholding the order passed by the Commissioner, Central Excise on 20.05.2005. As a result, the show cause notice dated 30.01.2004 proposing the goods covered by bills of entry at serial numbers 1 to 49 were held liable for confiscation under Section 111 (m) of the Act of 1962 for suppression of facts, differential duty on the goods cleared under Section 28 of the Act of 1962, imposition of penalty under Section 112 (b) of the Act of 1962 along with interest at appropriate rate under Section 28 AB of the Act of 1962. 4. The facts in brief giving rise to the present proceedings are that it is the case of the Assessee that it is a Company incorporated under the Companies Act, 1956 and is engaged in the manufacture of master batches that fall under Chapter 39 of the Central Excise Tariff. Calcium Carbonate is one of the items used in the manufacture of the master batche....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Assessee submitted that the Tribunal erred in not taking into consideration the earlier orders passed pertaining to the Assessee itself whereby the same product namely Calcium Carbonate described as 2T SA had been held as falling under the Head 3824.90. A clear declaration had been made that the product was coated and there was no question of any intention on the part of the Assessee to suppress the description of the said product. According to him since 13.07.1999 the goods were described as "surface coated" by the Assessee which fact was noticed by the Deputy Commissioner in his earlier order dated 15.10.2004. This relevant aspect was ignored by the Tribunal. According to him while it was the duty of the Assessee to appropriately describe the goods imported, the authorities were required to classify the same appropriately. Classification, if any, mentioned by the Assessee would not be relevant and it was the description as made by the Assessee that was relevant. He then submitted that the observations as made in the earlier order dated 20.05.2005 by the Commissioner of Central Excise as regards the description in the bill of entry being in conformity with the description in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of 2006, it was submitted that the said appeal was not pressed by the Revenue in view of the fact that the tax effect was less than Rs.Twenty lakhs. The Tribunal having considered all relevant aspects, there was no reason to interfere with the impugned adjudication. He therefore submitted that the appeal was liable to be dismissed. 7. We have heard the learned counsel for the parties and we have given due consideration to the respective submissions. Before considering the challenge to the impugned order passed by the Tribunal on 13.12.2016, it would be necessary to refer to the earlier proceedings between the parties with regard to import of the very same goods by the Assessee. The Assessee had imported 84 metric tons of Calcium Carbonate vide invoice no.853507 dated 18.06.1997. In the bills of entry the goods were classified under Customs Tariff Heading No.2530.90. The Assistant Commissioner by his order dated 19/20.12.1997 directed the said goods to be classified under the Heading 2836.50. This order was challenged by the Assessee before the Commissioner of Central Excise and by its order dated 22.07.2007 it was held by the Commissioner that the goods were liable to be classifi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3824.90 alongwith confiscation with an option to review the same on payment of fine. Penalty was also imposed under Section 112(a) of the Act of 1962. This order was challenged before the Commissioner (Appeals) and on 29.03.2004 while holding the classification to be under sub-head 3824.90, the order of confiscation and imposition of penalty was set aside by holding that there was no question of suppression of facts by the Assessee. This adjudication gave rise to appeals being preferred by the Assessee as well as by the Revenue being Appeal Nos. C/499 and 620/2004. Before the Tribunal, the Assessee did not contest the classification as made under sub-head 3824.90 and on that count its appeal was dismissed. The appeal preferred by the Revenue against setting aside of the amount of fine and penalty was also dismissed by the Tribunal on 22.02.2005 after holding that since the case related to classification, it was difficult to impute any wilful intention on the part of the Assessee of any mis-representation or suppression. As stated above Customs Appeal No.1 of 2006 preferred by the Revenue against this order was withdrawn on 04.07.2017, albeit for the reason that the tax effect was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns made in the order of the Tribunal dated 22.02.2005 were likely to have a cascading effect on other proceedings pertaining to the same assessee. It is also to be noted that the proceedings arising out of the earlier show cause notice dated 21.01.2004 were incidentally decided by the Tribunal on 13.12.2016 itself and the appeal preferred by the Revenue seeking expunging of the observations of the first appellate Court as regards absence of mis-declaration on the part of the importer/Assessee came to be dismissed. The Tribunal (Court No.1) while passing this order dated 13.12.2016 found that the first appellate Court had relied upon the certificate issued by the supplier of the goods to come to the conclusion that the charge of mis- declaration did not arise. This order dated 13.12.2016 passed in Appeal No. C-02/06 has attained finality between the parties. It is also relevant to note that the allegation of mis-declaration is based on the same material and it is also not in dispute that the Assessee had declared the said goods as being coated with stearic acid 2T SA. The Tribunal in its impugned order has not assigned any independent reason for upholding the show-cause notice dated....