TaxTMI 
TaxTMI 
TaxTMI 
2025 (5) TMI 2010
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....rresponds to the entry description "Nickel Oxides and Hydroxides" on which they were paying applicable duties which was accepted by the Revenue without any dispute. With the introduction of Notification No.12/2012-Cus. dated 17.03.2012 which exempted goods under CTH 28254000 from payment of Customs duty, it appears that the appellant claimed BCD exemption under Sl.No.161 of the above Notification upon import of the "Nickel Hydroxide Type M5", which were imported vide 24 Bills of Entry. The Revenue, however, disagreeing with the claim of the importer for the benefit of Notification supra issued SCN dated 17.03.2014 and after hearing the appellant, passed Order-in- Original No.34533/2015 dated 23.01.2015 demanding the differential duty along with applicable interest and penalty. The case of the Revenue is that in terms of Chapter Note 1 only separate chemical elements and separate chemically defined compounds were classifiable under Chapter 28 and hence, mixtures which are not separate chemically defined compounds are not at all classifiable under CTH 28; when Chapter Notes specifically exclude a particular category of goods, Rule 3 (b) of General Rules of Interpretation (GRI) could ....
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....t/metal, which has been admitted that these were added to enhance the conductivity of Nickel Hydroxide Compound, which is meant to be used for manufacture of 'Nickel Cadmium Batteries'. The relevant observations are reproduced below for ease of reference: "36.3 However, we find that during the process of investigation, the views of the Department were conveyed to the appellants and Show Cause-cum Demand Notice was issued only after considering their submissions. Even the appellant's statement was recorded under Section 108 of the Customs Act, 1962. The technical literature and other details as to the composition of the impugned goods and the laboratory test reports, etc., were duly considered by the Original Adjudicating Authority before the issuance of the Show Cause Notice. The aim of the Pre-notice Consultation is to avoid litigation and for quick settlement of tax disputes. It is noticed that the appellant has been continuously contesting the classification of the imported product all along leading to issuance of the Show Cause Notice and its adjudication. As such, we are of the opinion that no prejudice is caused to the appellant due to omission on the part of the Adjudicati....
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.... do not find any merits in the challenges to the as the impugned show cause notice/Order-in-Original. 201. In W.P. No. 20969 of 2021 in the case of Brilliant Corporate Services Private Limited, (Now known as M/s. Brivas Private Limited) v. Commissioner, Office of the Commissioner of GST and Central Excise, Chennai Outer Commissionerate, vide order dated 28-1-2022, it was ordered as follows :- "8. The petitioner has challenged the notice primarily on the ground that there was no pre-consultation as per the above mentioned circular. These circulars neither binding on the Court nor are contemplated under the provisions of the Finance Act, 1994. 9. The aforementioned Master Circular is intended to only facilitate the parties to come forward to pay the amount so that the department is not burdened with show cause proceedings. However, that by itself would not mean impugned show cause proceedings initiated against the petitioner would be either illegal or without jurisdiction. The show cause proceedings initiated under Section 73 of the Finance Act, 1994 seeking to demand tax which was allegedly not paid, cannot be allowed to be scuttled in the light of the above circular. In any e....
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....tional information in addition to the audit observation dated 110-2021", with a further direction to the Assessing Officer that the petitioner-Assessee shall be accorded personal hearing and the matter shall be discussed at length, we are satisfied that there is a substantial compliance to the principle of natural justice and the petitioner has sufficient opportunities to satisfy the Authorities that there is no reason to proceed against it on the basis of show cause notice, which was issued without pre-consultation process." 37.1 On the second issue of confiscability of the goods and imposition of fine and penalty, the Ld. Advocate has contended that there is no wilful misdeclaration rendering the imported goods liable for confiscation under Section 111(m) of the Customs Act, 1962. He has submitted that mere short payment of duty by adopting a particular classification will not make the imported goods liable for confiscation. In support of his contention, he has relied upon the Hon'ble Supreme Court‟s decision in the case of Northern Plastic Ltd. Vs. Collector of Customs & Central Excise [1998 (101) ELT 549 (SC)] wherein it was held that merely claiming t....
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....no issue of limitation involved as the show cause notices were issued within the normal period of limitation." 39. Considering the above facts that the appellant is a regular importer of the product which is used in the manufacture of Nickel Cadmium batteries and also considering that the supplier is reportedly adopting the above classification globally, we are of the opinion that attributing any malafide intention or motive for adopting such classification or claiming exemption benefit of the Notification is not justified in the facts of this case. Further, appreciating the ratio decidendi on the issue as discussed above, we hold that the imposition of fine and penalty is not justified and so ordered to be set aside. 40. In pursuance of the above discussion and findings, the appropriate classification of the imported product viz., I-MAS POs-Nickel Compound (Compound of Nickel Hydroxide) is determined to be under Tariff Heading 38249900 of CTA, 1975 as a chemical product or preparation of chemical and allied industries not elsewhere specified or included. The appellant's classification of the impugned goods under Chapter Heading 28254000 is rejected. Consequently, the appellant....