TaxTMI 
TaxTMI 
2025 (5) TMI 1034
X X X X Extracts X X X X
X X X X Extracts X X X X
....Synergies (also appellant herein) where they had filed bills of entry for Warehousing which were assessed under CTH 29024400. The invoices, chemical analysis report and certificate of analysis along with the bills of entry for warehousing were filed by Kunjal Synergies which were assessed by the Custom Authorities by accepting the classification of the goods declared under the CTH 29024400. Thereafter, the appellants M/s Berger Paints India Ltd and M/s Krest Organics Pvt Ltd (Appellant herein) has purchased part of the goods imported by M/s. Kunjal Synergies and filed Ex bond bills of entry, classifying the goods under the same CTH 29024400 and cleared the goods from the warehouse. The Appellant M/s Kunjal Synergies Pvt Ltd also cleared part of the warehoused goods by filing Ex-bond Bills of Entry under the classification of CTH 29024400. 2. The Custom Authorities disputed the classification made in the Bills of Entry for warehousing done by all the appellants under the Custom Tariff Heading no. 29024400 alleging that the hydrocarbon solvent imported by the appellants and cleared by filing the Ex Bond Bills of Entry cannot be treated as 'Mixed Xylene Isomers' as mentione....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ove said demands of differential customs duty along with interest and penalties, all the appellants mentioned supra have filed these appeals. 4. The appellants submit that the classification adopted by them under the CTH 29024400 is correct and it cannot be disputed on the ground that 'Ethyl Benzene' is not an isomer of Xylene. The appellants also submit that the officers cited the Explanatory Notes of the Harmonized Commodity Description and Coding System published by World Custom Organization which prescribes that CTH 29024400 would be applicable to Mixed Xylene Isomers taken together if these are 95% or more by weight of Xylene Isomers. It is contended that the test report submitted by them clearly indicates that mixed Xylene Isomers including 'Ethyl Benzene' has more than 95% by weight of Xylene Isomers; However, in the impugned order it has been alleged that 'Ethyl Benzene' which formed part of the solvent as per analysis report filed by the importer is not an Isomer of Xylene. 4.1. The Appellants submits that the word "Isomer" has a distinct meaning in chemistry. The isomer is defined in the chemical dictionary of Howley as follows: isom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed any information from the Department; Hence, the Show cause Notice issued on 04.04.2016, demanding differential customs duty for the clearances effected from 2011 onwards, by invoking extended period of limitation as provided under Section 28(4) of the Customs Act, 1962, is not sustainable. 5. The Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. He cited the Explanatory Notes of the Harmonized Commodity Description and Coding System published by World Custom Organization and submitted that the Explanatory Notes prescribes that CTH 29024400 would be applicable to Mixed Xylene Isomers taken together if these are 95% or more by weight of Xylene Isomers. Since 'ethyl benzene' which formed part of the solvent as per analysis report filed by the importer is not an Isomer of Xylene, the classification CTH 29024400 adopted by the appellants for the imported goods is not proper. In support of his contention, he cited the decision of the Tribunal, Delhi in the case of Collector of C.Ex., Bombay Vs Oswal Petrochemeicals Ltd, reported in 2000 (126) ELT 1232 (Trib). The Ld. A.R also cited the decision in the case of Addisons Paint and Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2902 43 00 p-Xylene Kg. Free 2902 44 00 Mixed xylene isomers Kg. 2.5% 2902 50 00 Styrene Kg. 2% 2902 60 00 Ethylbenzene Kg. 2.5% 2902 70 00 Cumene Kg. 2.5% 2902 90 Other : Kg. 2.5% 7.3. The Explanatory Notes of the Harmonized Commodity Description and Coding System published by World Custom Organization, which has been relied upon by the adjudicating authority to re-classify the imported goods under the CTH 27073000 is reproduced below: (1) Hydrocarbons with only one benzene ring. These include benzene and its homologues. (a)-------------------------- (b)-------------------------- (c) Xylene (dimethylbenzene) (C6H4(CH3)2)* 7.4. We observe that three isomers namely o-xylene, m-xylene and p-xylene. have been classified under the CTH 29024100, 29204200 and 29024300 respectively. Thus, it is clear that the Isomers of Xylene are specifically classified under the CTH 2902 only. 29024400 covers mixture of Xylene Isomers. Thus, we observe that in order to classify the goods under the CTH 29024400, it must be established that the goods imported by the appellants are a mixture of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tial customs duty along with interest confirmed in the impugned order is not sustainable and hence we set aside the same. 7.8. We observe that the ld. adjudicating authority has relied upon the decision of the Tribunal, Delhi in the case of Collector of C.Ex., Bombay Vs Oswal Petrochemicals Ltd, reported in 2000(126) ELT 1232 (Trib). However, we find that the facts and circumstances of the case cited is different from the facts of the case on hand. In the present case the goods imported by the appellant are classifiable under the CTH 29024400 as it satisfies the conditions prescribed in the HSN Explanatory Notes to Chapter Heading 2902. Accordingly, we hold that the decision cited is not applicable to the present appeals. 7.9. We have considered the decision in the case of Addisons Paint and Chemicals Limited Vs. Commissioner of Central Excise, Ahmedabad reported in 2006 (196) ELT-31, Tribunal at Chennai and followed Tribunal in Jay Polychem India Ltd Vs. Commissioner of Customs, Kandla reported in 2017 (5) TMI-1127 cited by the Ld. Authorized Representative of the Revenue. We find that in the decision cited, the mixture of three methyl isomers with Ethyl benzene has been hel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....clearances effected from 2011 onwards, by invoking extended period of limitation as provided under Section 28(4) of the Customs Act, 1962, is not sustainable. Thus, the demands confirmed in the impugned order by invoking extended period of limitation is liable to be set aside on the ground of limitation also. 7.13. Regarding the penalties imposed on the appellants, we observe that the allegation of mis-declaration raised against the appellants is not sustained. We also find that suppression of facts with intention to evade the payment of customs duty has not been established in this case. Accordingly, we hold that the penalties imposed on the appellant companies as well as its Directors under section 114A and 114AA of the Customs Act, 1962 are not sustainable and accordingly, we set aside all the penalties imposed on the appellants in the impugned order. 8. In view of the above discussions, we set aside the impugned order and allow the appeals filed by the appellants, with consequential relief, if any, as per law. (Operative part of the order was pronounced in open court) ============= Document 1 Reliance Industries Limited Bazira Manufacturing Division, Surat Hazira ....