2023 (3) TMI 751

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....ch with an intake capacity of 10 tons per hour vide two Bills of Entry both dated 12.12.2008. Among the Bills of Entry, the second Bill of Entry was for partial shipment / part delivery. The respondent classified the goods under CTH 8437 as applicable to seed processing machine and paid BCD @ 7.5% with 'Nil' CVD. Later, Customs Receipt Audit (CRA) observed that part deliveries include elevators, conveyers, two way valves, square packing bins, cyclofan, piping system etc. which cannot be treated as seed processing machinery and hence cannot be classified under CTH 8437.Demand notice dated 05.06.2009 was issued proposing to demand duty of Rs.17,28,863/- under Section 28 (1) of the Customs Act, 1962. Though the respondent contended that the Pr....

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....lassified under CTH 8437, they have failed to render any finding as to what would be the correct classification. The Commissioner (Appeals) has noted this aspect in para-9 of the order. It is observed by the Commissioner (Appeals) that although the department has denied the classification to be under CTH 8437, there is nothing stated in the show cause notice as to what would be the correct classification of the goods. Further, in the present case, both the consignments cleared under two separate Bills of Entry belonged to the same proforma invoice which can be verified from the import invoices. Only when the goods, which are other than the complete machinery, are imported separately without accompanying the main machinery, there can be a do....

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....oner (Appeals) has analyzed the said issue as under : "9. Since, the impugned order is not clear exactly under what sub-heading the goods were cleared under eight digit level and the appellant also did not produce the copies of the bills of entry to verify the same, I am not in a position to find out the correct classification of the goods under which the same were cleared. According to the description of the goods available from the impugned order, I am of the opinion that the complete machinery as such will fall under CTH 84371000. The partial shipment/part shipment goods, which were other than the complete machinery, at least should have been classified under CTH 84379090 as 'Parts'. Under both the classification the 'CVD' payable is '....