TaxTMI 
TaxTMI 
2022 (8) TMI 885
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....aimed by the appellant and allowed by the proper officer or whether they would merit tariff concession @8% under serial no. 428 of Part A of the aforesaid notification as has been determined by the Principal Commissioner. 3. The facts reveal that all the aforesaid consignments were assessed to duty by the appraising officers after scrutiny of the import documents and verification of the declared description and were given customs out of charge by the proper officer after physical examination and satisfaction that the toys were covered by serial no. 427 of Part A of the aforesaid notification. 4. However, a show cause notice dated January 04, 2017 was issued to the appellant mentioning therein that the appellant had wrongly claimed the benefit of higher abatement. The appellant filed a detailed reply to the aforesaid show cause notice denying the allegation made therein and contended that the appellant was entitled to the abatement in terms of serial no.427 of Part A of the notification dated July 22, 2005. 5. The Principal Commissioner did not accept the contention advanced on behalf of the appellant and confirmed the demand of differential duty. Paragraphs 18 and 18.1 of the or....
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....y Keyboard, Microphone Toys. Doctor Series Toys, Dresser accessories are not found included in Sub category (g) which includes toys, put up in sets or outfits. Sub category (h) includes toys and models having motor and would not include the pull back or wind up toys. The benefit is therefore not available to all kind of plastic toys similar to the description in the list, but only to the toys which strictly conform to the description in the above list. Ongoing through the list of toys imported by the noticee and detailed in para 12 above. I do not find that these are covered under the categories of the toys mentioned in Sr. No.427 of the Notification No.72/2005-Cus dt.22.07.2005." 6. Shri Piyush Kumar, learned counsel assisted by Ms. Ekta Kapoor, has made submissions on merits but at the same time has also pointed out from the compilation that has been filed today at the time of hearing that orders denying the higher rate of abatement for similar reasons were also passed by Joint Commissioner, but these orders were set aside by the Commissioner (Appeals) Delhi, which orders have been accepted by the competent authority and no appeals have been filed. In this connection, learned co....
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.... Order-in-Appeal No. CC(A) CUS/D-II/ICD/TKD/Imp/1196/2021-22 dated 29.09.2021 Accepted by the Competent Authority on 27.12.2021 7. Learned counsel pointed out that except for the matter at serial no. 1, all the matters from serial no. 2 to 16 relate to this issue. The submissions advanced, therefore, is that once these orders passed by the Commissioner (Appeals) making available the higher rate of abatement on toys was accepted by the competent authority, the Department cannot be permitted to take a different stand in the present matter, as has been take by the Principal Commissioner. 8. Shri Radhe Tallo, learned authorized representative appearing for the Department has, however, supported the impugned order and has stated that it does not suffer from any infirmity so as to call for interference in this appeal. 9. The submissions advanced by the learned counsel for the appellant and learned authorized representative appearing for the Department have been considered. 10. In order to examine the submissions made by learned counsel for the appellant that once the order of the Commissioner (Appeals) has been accepted by the Department, on an issue which is involved in this appeal....
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....n some of the toys" wrong abatement has been claimed by the Noticee but while calculating the differential duty denies abatement to each and every toy imported under all the subject Bs/E without specifying that what are those "some toys". To these contentions I find that the noticee has self-assessed the bills of entry covered under the impugned show cause notice under provisions of section 17(1) of the Customs Act 1962 and during such self-assessment he claimed the duty benefit on the pretext that the goods are covered under the said notification while the department later on, after clearance, contends that as per the nature and in character the said goods does not fit in the said notification. Here I find that if such plea of the noticee, that the goods were examined by Customs than no duty can be demanded under section 28(1) even without invoking suppression, is admitted than I am afraid that such an interpretation would make whole section 28 as redundant which cannot be the intention of legislature. Such provisions are there to demand and recover duty if such duty is found as short levied or short paid which is subject matter in present case. So I find that even verification by....
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....2(GUJ) etc. To this I find that the noticee seems forget that as per section 17(1) each and every bill of entry has to be matter compulsorily self-assessed by the importer and as per section 17(2) the proper officer may verify the self- assessment by testing examination etc. and it is not a case where each and every article imported under said bills of entry by the noticee were examined 100% by the proper officer so such request I find as not acceptable as the case in hand is of admissibility of exemption notification which is claimed by the noticee as it is not based upon any statement of the noticee recorded by the proper officer. Here in the case it is the noticee which has to first proves his admissibility regarding said notification. Therefore, I find that the submission made by the importer and the case laws relied upon are of no use to the noticee so request of the noticee for cross examination is also not sustainable. On the issue of confiscation, I find that in the show cause notice it is stated that there is misdeclaration but what is the misdeclaration is not specified nor the sub-section in which such misdeclaration would fall so to this extent I find that the noticee i....
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....428 of the said Notification for various kinds of toys and rather, the show cause notice is a cryptic one. Details of items in each of the 57 bills of entry which were not allegedly eligible for the benefit have not been provided at all. Further, I note that this was not a case of provisional assessment and assessment were finalized at the time of clearance. Also, no samples were drawn from the consignment, at the time of assessment. All the consignments were also accompanied by requisite Test Certificates containing detailed description of goods and were cleared after examination by the Department. Thus, once goods have been cleared after admitting the claim of the appellant, the adjudicating authority need to prove with cogent evidence that the benefit was not admissible to them. Apparently, the whole case is based upon Audit objection and the claim has been denied simply by considering description of toys in bills of entry but without elaborating how they were not eligible for benefit, already claimed and allowed. For example, toy described as "Toy train" has been denied benefit of entry 427(a) on the ground that it is available to "electrical trains with tracks, signals etc." B....
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....of the decision of the Tribunal in GODREJ & BOYCE MFG, CO. LTD. v/s COMMISSIONER OF C.EX., MUMBAI [1999 (144) E.L.T. 118 (Tribunal)]" 13. The aforesaid two orders have been reproduced to show that what is contained in paragraphs 18 and 18.1 of the present impugned order are identical to paragraphs 18 and 19 of the order dated May 31, 2019 passed by the adjudicating authority in the matter of Ajay Impex. It is also clear that the order passed by the Principal Commissioner has been taken aid of by the Joint Commissioner while passing the order dated May 21, 2019. 14. In this view of the matter, we do find substance in the submission advanced by the learned counsel for the appellant that once the order dated September 29, 2021 passed by the Commissioner (Appeals) was accepted by the competent authority on December 27, 2021, as is clear from the information made available to the appellant under the Right to Information Act, the Department cannot be permitted to take a different stand in the present appeal filed by the appellant. 15. This view, finds support from the decision of the Supreme Court in Berger Paints India Ltd. vs Commissioner of Income Tax, Calcutta 2004 (165) E.L.T. 48....