TaxTMI 
TaxTMI 
2023 (9) TMI 464
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....the same under CTH 90229030 and wrongly availing exemption under Customs Notification Nos. 021/2012 Sl.No. 473 and 021/2012 Sl.No. 95. Import data pertaining to import of Radiotherapy Equipment for past years was retrieved and the importers were identified. One of such importers was the assessee herein. It was observed that the assessee had imported and cleared goods for home consumption vide three Bills of Entry as per the details as under: S. No. B.E No. & Date Description Duty Exemption CTH Claimed 1 4814028/ 06.04.2016 Partial Shipment of Linear Accelerator- Base Installation, Pre-Installation Kit. C.N 12/12 Sl.No. 473 & SAD Notification No. 21/2012 Sl.No. 95 90229030 2 5499796/ 03.06.2016 High Energy Linear Accelerator True Beam STX Including Accessories ---DO-- 90229030 3 5507937/ 04.06.2016 True Beam Couch ---DO-- 90229030 4 5507937/ 04.06.2016 MV Imager ---NA-- 90221490 5 5507937/ 04.06.2016 Aria Oncology Information System ---DO-- 90229030 6 5507937/ 04.06.2016 Eclipse Treatment Planning System ---NA-- 90221490 7 5507937/ 04.06.2016 KV Imager ---NA-- 9022....
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....1962 should not be imposed upon them. 3.2 The assessee replied to the Show Cause Notice stating that for the import of main equipment as well as other equipments, the assessee had obtained authorisation under Export Promotion Capital Goods (EPCG) Scheme. The duty limit of the EPCG License was fixed after computing BCD at 7.5% + CVD at 6% + Education Cess at 3% + SAD at 4%. The following EPCG authorisation was issued to the assessee. S. No. Authorization No. Authorization Date Average EO to be maintained Duty Saved (INR) Specific EO 1 0430015780 19.05.2016 44,08,65,328/- 9,24,52,523/- 55,47,15,138/- 4. It was submitted that identical goods were imported by M/s. Nagarjuna Hospital Limited vide Bill of Entry No. dated 18.03.2016 and the goods were examined on first check basis by Customs House, Chennai. After detailed examination, classification of these goods was settled by the Department under Tariff Item 90229030. The assessee followed the same as both these consignments were cleared by the same CHA. There was no intention or deliberate action on the part of the assessee to evade payment of duty. 5.1 On merits, the assessee submitted tha....
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....Six Hundred and Forty One only) under Section 28(8) of the Customs Act, 1962. I order the differential duty of Rs.1,60,33,862/- (Rupees One Crore Sixty Lakh Thirty Three Thousand Eight Hundred and Sixty Two only) (in respect of Bills of Entry Nos. 5499796 dated 03.06.2016 and 5507937 dated 04.06.2016) to be debited in the EPCG authorization 0430015780 dated 19.05.2016 and the balance differential duty of Rs.99,779/-(Rupees Ninety Nine Thousand Seven Hundred and Seventy Nine) (in respect of Bill of Entry No. 4814028 dated 06.04.2016) to be collected along with applicable interest under Section 28AA of the Customs Act, 1962. D. I hold that no interest is demandable in respect of Bills of Entry Nos. 5499796 dated 03.06.2016 and 5507937 dated 04.06.2016. E. I hold goods namely "One set of High Speed Linear Accelerator - True Beam STX with HD 120 millenium system with accessories, Base Frame Universal, Pre-installation and Main circuit Breaker, MV and KV Imager, ARIA Oncology Information System and Eclipse TPS" covered under Bills of Entry Nos. 4814028 dated 06.04.2016. 5499796 dated 03.06.2016 and 5507937 dated 04.06.2016, totally valued at Rs.28,62,62,235/- (Rupees T....
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....n view of the debit in the EPCG Licence on account of available balance, the original authority held that no interest liability arises in respect of the Bills of Entry dated 03.06.2016 and 04.06.2016. However, in respect of Bill of Entry dated 06.04.2016, the original authority held that the differential duty of Rs.99,779/- is payable with interest as the SFIS scrip details available with the office on ICES module brings out that there is no adequate balance. 7.2 The Ld. counsel submitted that the assessee accepts the order passed by original authority in allowing debit of the differential duty in the EPCG authorization dated 19.05.2016. The appeal is against the order of confiscation, imposition of redemption fine and penalties. In paragraph 26 of the impugned order, it is seen that the original authority has held that the goods are liable for confiscation only because of the wrong classification adopted by the assessee. The assessee was under bona fide belief that the goods are classifiable under CTH 90229030. Moreover, identical goods imported by M/s. Nagarjuna Hospitals Limited from the same suppliers under Bill of Entry dated 18.03.2016 was classified under the same heading....
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....ase was rendered without considering the decision of Hon'ble Supreme Court in the case of Weston Components Ltd. (supra). The decision of the Apex Court in the case of Weston Components Ltd. has been followed by the Punjab and Haryana High Court in the case of Commissioner of Customs Vs. Raja Impex (P) Ltd. [2008 (229) ELT 185 (P&H)], to hold that when the goods are not available, the order of confiscation is not proper. 8. The Ld. counsel prayed that the order of confiscation and imposition of redemption fine and penalties may be set aside. 9. It is also submitted by the Ld. counsel that the Show Cause Notice in the present case is issued by DRI. Though the issue as to whether the Show Cause Notice issued by DRI is proper and valid is pending consideration before the Hon'ble Supreme Court, the assessee does not intend to raise the said plea in regard to this appeal before this forum or any other forum. The assessee has filed an affidavit to this effect. 10. The Ld. Authorised Representative Shri R. Rajaraman appeared and argued for the Revenue. It is submitted that the original authority has erroneously waived the demand of interest in regard to Bills of Entry dated 03.06....
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....to the imported Radio Therapy Apparatus System. The appellant contests the confiscation, fine and penalty. We therefore do not interfere or disturb the classification re-determined by the adjudicating authority. 15.2 The imports have taken place in June 2016, whereas, the Show Cause Notice was issued in this case vide F.No. DRI/MZU/B/Int-54/2018/4170 dated 28.05.2018 by the ADG, DRI, Mumbai that is within two years under Section 28 (1) of the Customs Act, 1962. 16.1 The lower adjudicating authority held the goods liable for confiscation under Section 111(m) of the Customs Act, 1962 which reads as given below:- "111. Confiscation of improperly imported goods, etc.-The following goods brought from a place outside India shall be liable to confiscation:- . . (m) 1[any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 2[in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54];" 16.2 This provision enables conf....
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....ding which is subject to re-assessment by the officers if necessary. Therefore, an assessee, not being an expert in the Customs law can claim a wrong tariff or an ineligible exemption notification and such claim does not make his goods liable to confiscation. 16.7 Another plea raised by the assessee was that the redemption fine is not imposable when the goods are not available for confiscation under Section 111 (m) of the Customs Act relying on the decision rendered by the Hon'ble Supreme Court in the case of Weston Components Ltd. Vs. Commissioner of Customs [2000 (115) ELT 278 (SC)] wherein it was held that in the absence of goods, redemption fine can be imposed only if the goods were released on bond. 17 . Considering the above judicial decisions, we hold that there is no contravention of provisions of Section 111 (m) of the Customs Act, 1962 as the assessee has declared all the details and the value of the imported goods in the Bill of Entry filed. As such, we have to hold that confiscation of the imported goods is not justified, and so, set aside. Consequently, the fine imposed is also ordered to be set aside. 18.1 Regarding Department's appeal for not confirming the ....