TaxTMI 
TaxTMI 
2025 (5) TMI 2017
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.... Intelligence DRI to the assessee and it's partner Shri Sandeep Kabra Kabra proposing to: a) Reject the declared classification of 'Engineered Quartz Stone' under Customs Tariff Item CTI 68159990 in several Shipping Bills filed by the assessee and exported during 2017 and 2018 and to re-assess the Shipping Bills classifying it under CTI 68101990; b) Recover from the assessee an amount of Rs. 69,32,401/- said to have beeen wrongly availed and utilised using scrips under the Merchandise Export from India Scheme MEIS under section 28AAA of the Customs Act, 1962 Act; c) Appropriate an amount of R.s 73,40,209/- paid by the assessee during investigation; d) Hold the exported goods with FOB value of Rs. 11,63,45,015/- liable for confiscation under section 113(i) of the Act; e) Impose penalties on the assessee under Sections 114(iii) and 114AA of the Act; and f) Impose penalties on Shri Kabra under section 114(iii) and 114AA of the Act. 2. In the impugned order, the Commissioner confirmed the proposals at (a), (d) and (e) above and dropped the proposals at (b), (c) and (f). 3. Revenue filed Customs Appeal No's. 50324 of 2021 as it....
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....S scheme falls exclusively under the jurisdiction of DGFT and Customs officers have no locus standi in the matter. (iii) Demand and recovery under section 28AAA is permissible only where 'such instrument is utilised under the provisions of the act' and there is nothing in the SCN to show that the instruments were utilised and therefore, the Commissioner correctly dropped the demand. (iv) Demand under section28AAA is permissible only if the MEIS scrip is obtained by collusion, wilful mis- statement or suppression of facts and none of these elements were even alleged, let alone, established in the SCN. (v) The exported goods were correctly classified under CTI 68159990 and it has been accepted by all authorities as evidenced by the following documents: a. Approval of Development Commissioner, NOIDA, SEZ dated 19.4.2016; b. Sanction order for the EOU issued by the Assistant Commissioner dated 13.5.2016; c. Intimation for sealing given to the jurisdictional central excise officers; d. ARE-1 and ER-2 forms under Central Excise Act, 1944 for 100% EOU filed by the assessee and endorsed by the officers; e. Proof of Exp....
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....able, if any, under this Act or under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act) or under any other law for the time being in force, with reference to- (a) the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act; (b) the value of such goods as determined in accordance with the provisions of this Act and the Customs Tariff Act; (c) exemption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific factor which affects the duty, tax, ce....
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....roper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re- assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Explanation. - For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received." 16. Thus, the exporter can assess the Shipping Bill and the proper officer can re-assess a Shipping Bill. The question which may ....
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....nd they read as follows: "(18) 'export', with its grammatical variations and cognate expressions, means taking out of India to a place outside India; (19) 'export goods' means any goods which are to be taken out of India to a place outside India; (20) 'exporter', in relation to any goods at any time between their entry for export and the time when they are exported, includes any owner, beneficial owner or any person holding himself out to be the exporter;" 18. Similarly, once the goods are cleared for home consumption the importer will no longer be the importer and the goods will no longer be imported goods. Sections 2(23), (25) and (26) clarify this position and they read as under: "(23) 'import', with its grammatical variations and cognate expressions, means bringing into India from a place outside India; (25) 'imported goods' means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption; (26) 'importer', in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, beneficial....
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....neously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; Provided that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of,- (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under section 28AA or the amount of interest which has not been so paid or part-paid. ***** (4) Where any duty has not been levied or not paid or has been short-levied or short-paid or erroneously refunde....
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....cal errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be." 21. Either party aggrieved by the assessment can appeal to the Commissioner (Appeals) under section 128. Revenue can also modify the assessment by issuing an SCN under section 28 and adjudicating it but this can be done only to recover duties not levied short levied, not paid, short paid or erroneously refunded. Section 149 is a power which the officer can exercise if the assessee seeks an amendment to the Bill of Entry or Shipping Bill. Section 154 empowers the officer to correct arithmetical or clerical errors in his order. 22. In case of Shipping Bills which have been assessed and goods have already been exported, if there is no proposed recovery of export duty, the only remedy available to the Revenue is to assail the assessment through an appeal to the Commissioner (Appeals) under s....
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....ioner did not confiscate the goods for the reason that they were not available. However, he recorded in paragraph 4.13 of his order that they were liable to confiscation. We find that as per Section 113 of the Act, certain categories of goods attempted to be exported will be liable to confiscation. Clause (i) of this section is relevant for the purpose of this case. It reads as follows : "SECTION 113. Confiscation of goods attempted to be improperly exported, etc. - The following export goods shall be liable to confiscation:- **** (i) any goods entered for exportation which do not correspond in respect of value or in any material particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 ; ****" 29. The 'entry made under the Act' in this case is the Shipping Bill. It is not the case of the Revenue that the goods which were exported did not correspond to what was declared in the Shipping Bill. Revenue's case is that the classification of the goods in the Shipping Bill was not correct. Classification of goods is a matter of opinion and it is part of the assessment. The exporter may....
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....s declared by the exporter or the value as determined under this Act, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the penalty so determined; (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater." 33. The case of the Revenue is that the assessee, by filing Shipping Bills classifying them according to its understanding (and the understanding of the Development Commissioner, Central Excise officers, etc.) and NOT classifying them according to the view subsequently....