TaxTMI 
TaxTMI 
2024 (3) TMI 137
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....presence of the Customs Broker and found that motors were packed in one box and the shafts were packed in another box separately. The 'user manual' retrieved from the box described the goods as 'grass trimmer/brush cutter'. Investigation was initiated on the classification of said products. After recording the statements, analyzing the catalogues etc., and on completion of said investigation, a show cause notice was issued to the appellants on 14.11.2014 alleging that the products imported namely 'brush cutters' are classifiable under CTH 8467 8990 and not under CTH 8432 2990 as claimed in the respective Bill of Entry. The appellants accepted the said classification and discharged duty with interest amounting to Rs.49,72,134/- for the period from 18.01.2014 to 30.09.2014 under protest classifying the products under CTH 8467 8990. Further investigation revealed that similar goods were imported in the past by the appellants and consequently, demand notice was issued for the period from 18.11.2009 to 28.11.2013 demanding differential duty of Rs.93,37,120/- with interest and penalty with proposal for confiscation. Hence the preset appeals. 3.1 The Ld. Advocate for the Appellant submit....
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....disputed by the Department and in cases where the duty is paid with interest, then show cause notice should have not issued; also, in such cases, penalty is not imposable on the assessee. 3.2 She has further submitted that the show cause notice invoking extended period of limitation and confirmed by the Commissioner is not sustainable in-as-much-as the appellants have neither indulged in any suppression nor mis-declared the description of the imported goods with an intent to evade payment of duty. She has submitted that the appellants are importing the goods from November 2009 onwards classifying the same under CTH 84322990 of CTA,1975. The appellants have been filing all the required documents such as bills of entry, supplier invoices, packing lists etc. and they have not mis-declared the description of the imported goods in all the documents including bills of entry, which are correctly described as 'brush cutters' and the same have not been disputed by the Department. The imported goods have been duly examined and assessed by the Customs Officers and assessment orders have been passed accordingly. She has further submitted that extended period of limitation cannot be invoked in....
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..... Heard both sides and perused records. 6. The issues involved in the present appeals for determination are, whether: (i) the imported goods namely 'brush cutters' classifiable under CTH 8432 2990 or under CTH 8467 8990 of the Customs Tarriff Act, 1975; (ii) demand could be confirmed invoking extended period of limitation for the past period 18.11.2009 to 28.11.2013 and (iii) penalty imposable on the appellants. 7. The appellant in their reply dated 14/5/2015 before the Commissioner submitted that they are not contesting the classification of the product, brush cutter, on merit, but contested the invoking of extended period of limitation. In the finding, the Commissioner recorded that the appellant has accepted the re-classification of the goods under CTH 8467 and the dispute is only for the demand invoking extended period. However, the Commissioner proceeded to discuss the classification on merit and also the demand for extended period. In the grounds of appeal, the appellant agitated the classification and during the course of argument the Advocate for the appellant also raised the issue on merit as well as on limitation. 8. Before analyzing the relevant entries in ascertainin....
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....300 -- Root or tuber harvesting machines u 7.5% - 84335900 -- Other u 7.5% - 843360 - Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce : 84336010 --- Machines for cleaning u 7.5% - 84336020 --- Machines for sorting or grading u 7.5% - 84339000 - Parts kg. 7.5% - 8467 TOOLS FOR WORKING IN THE HAND , PNEUMATIC HYDRAULIC OR WITH SELF- CONTAINED ELECTRIC OR NON-ELECTRIC MOTOR - Pneumatic : 846711 -- Rotary type (including combined rotary percussion) : 84671110 --- Drills u 7.5% - 84671120 --- Hammers u 7.5% - 84671190 --- Other u 7.5% - 84671900 -- Other u 7.5% - - With self-contained electric motor: 84672100 -- Drills of all kinds u 7.5% - 84672200 -- Saws u 7.5% - 84672900 -- Other u 7.5% - - Other tools : 84678100 -- Chain saws u 7.5% - 846789 -- Other : 84678910 --- Compressed air grease guns, lubricators and similar appl....
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....which cut the grass against a fixed horizontal blade, or rotating disc with knives on outer edge. (2) Mowers (including Motor mowers) for cutting hay etc. They usually consist of a horizontal cutter bar and sections which cut by oscillating action of teeth between the fingers of cutter bar, or they may consist of rotating discs or drums with knives on outer edge. ------ (21) Machines for removing leaves from maize (corn) cabs; maize (corn) threshers. However, this heading excludes portable machines for trimming lawns, cutting grass along walls, borders or under bushes, for example. Thes machines, which are composed of a self-contained internal combustion engine in a light frame or of an electric motor mounted on a metal handle and cutting device usually consisting of one or more thin nylon threads are classified in heading 8467. (emphasis supplied). 8.4.1 The Explanatory Notes to CTH 8467 are follows: "This heading covers tools which incorporate an electric motor, a compressed Air Motor (or compressed air operated piston), on internal combustion motor or any other motor (e.g. small hydraulic turbine).... The heading covers such tools only if for working in hand. The e....
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....tion of particular product mentioned in the HSN cannot be brushed aside in determining the correct classification of a product. The Hon'ble Apex Court in CC, Bombay Vs. Business Forms Ltd. - 2002-TIOL-277-SC-CUS-LB held as below: "These civil appeals arise on orders of the Customs, Excise and Gold (Control) Appellate Tribunal and they have to be allowed and the matters remanded for re-consideration by that Tribunal because, principally, the Tribunal has declined to place reliance upon the Explanatory Notes in the H.S.N. stating that, at best, these have only persuasive value. 2. This Court in Collector of Central Excise, Shillong v. Wood Craft Products Limited [1995 (77) E.L.T. 23] has said : "We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, ....
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....duct brush cutter under CTH 8467. Further, they have stated that it is only in the case of imports from Singapore supplier, the classification of 'brush cutter' was mentioned in the invoice as CTH 84678900, which is nominal, whereas bulk quantity imported from Japan under CTH 84322990; hence, for uniformity they declared classification under CTH 84322990 and there was no intention to claim any wrong classification. 14. The Ld. Commissioner in the impugned order confirming the demand for extended period has observed that the description of the product in the relevant Bills of entry is declared as 'Engine Brush Cutter', or Brush Cutter, or Brush cutter (Engine). Further, he has held that from the explanatory notes, it is clear that these goods are portable tools or for working in hand, but nowhere in any of the documents, the appellant declared this vital information that the imported goods are portable tools for working in hand. Non disclosure of this vital fact during the self-assessment era, post 2011, resulted into suppression of fact. Further, he has observed that nondisclosure of these facts do not support the defence of the appellant that the goods were examined and examinati....