TaxTMI 
TaxTMI 
2025 (8) TMI 614
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....ation, samples were drawn of the impugned goods and sent to CIPET, Guindy for testing the composition of the imported item. CIPET vide report dated 18.6.2020 stated that the goods were 'polyurethane sheet used for car sheet pave PQG BR (GT Non-Vent)'. Hence a Show Cause Notice (SCN), dated 01.11.2022 was issued for the period Nov. 2019 to 22nd Oct. 2020, invoking the extended period of demand,, for reclassifying the goods under CTI 3921 1390 and denying the FTA benefit under Notification No. 152/2009-Cus dated 31.12.2009, along with interest, penalty etc. After due process of law, the Ld. Adjudicating Authority rejected the classification adopted by the appellant and reclassified the goods and confirmed the short-payment of duty amounting to Rs.6,44,34,643/-, along with interest. He also imposed an equal penalty under sec. 114A of the Customs Act, 1962 apart from confiscating goods valued at Rs.49,64,14,824/- with an option of redeeming the same by payment of redemption fine of Rs.2.50 crores. Hence the present appeal. 3. The Ld. Counsel Shri A. Mohamed Ismail appeared for the appellant and Ld. Authorized Representative Smt. O.M. Reena appeared for the respondent. 3.1 Shri A.....
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....n the part of the importer who had gone for the testing and re-classification of the impugned goods. With the introduction of self-assessment by amendments to Section 17 of Customs Act, 1962 w.e.f. 8th April, 2011, it is the responsibility of the importer to declare the correct description, value, notification, etc. and to correctly classify, determine and pay the Customs duties applicable to the imported goods, but the importer had failed to comply with the same. Hence demand for the extended period was correctly invoked. She prayed that the appeal may be rejected. 4. The submissions of both the parties have been considered and the material on record has been perused by us. We find that the dispute relates to a matter of classification, which has led to the appellant being declared as ineligible to the benefits of duty exemption. The primary issue raised by the appellant is that the SCN issued under Section 28(4) of Customs Act 1962 for the extended period was time-barred as there was no willful misstatement or suppression of fact. Para 28 and 29 of the OIO states the departments case for invoking the extended period for demanding duty. The relevant portion is extracted below; ....
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....used for car sheet pave PQG BR (GT Non-Vent)'. Hence the goods were not found to be wrongly declared. The end use of polyurethane sheet is not determinative of its classification. Moreover, 18 Bills of Entry had been subjected to examination as per the RMS instruction and no change in the classification heading was suggested or any misdeclaration pointed out. 5.1 Hence there was no positive action by the importer which betrays a negative intention of willful default. It was held by the Hon'ble Supreme Court in Uniworth Textiles Ltd. v. Commissioner of Central Excise, Raipur [2013 (288) E.L.T. 161 (S.C.)], thus; 19. Thus, Section 28 of the Act clearly contemplates two situations, viz. inadvertent non-payment and deliberate default. The former is canvassed in the main body of Section 28 of the Act and is met with a limitation period of six months, whereas the latter, finds abode in the proviso to the section and faces a limitation period of five years. For the operation of the proviso, the intention to deliberately default is a mandatory prerequisite. 20. This Court in Aban Loyd Chiles Offshore Limited and Ors. v. Commissioner of Customs, Maharashtra - (2006) 6 S....
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....ications, if any, in respect of the imported goods while presenting the Bill of Entry. However, in this case there has been no mis- declaration of description and the understanding of the importer on the classification of the goods cannot be held to be a mis-declaration just because it did not tally with the views of the department. Something more is required as discussed in Uniworth Textiles Ltd. (supra). Moreover, even after examining the goods as per RMS instructions, the Customs Authorities themselves have not found anything amiss in the declaration until the matter was examined by SIIB. 7. We also find that for similar imports at Bangalore, the Ld. Original Authority at Bangalore has sought to classify the goods under CTH 3926 3090. The position is shown in the Table below. Description declared by the importer in import documents Polyurethane sheet -used for car seat Importer claim of CTH at Chennai 3926 9099 Importer claim of CTH at Bangalore 3926 9099 Dept. claim of CTH at Chennai 3921 1390 Dept. claim of CTH at Bangalore 3926 3090 This shows the divergence of opinion in the classification of the said goods, within the department itself. F....
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....ground of limitation, the Tribunal committed an illegality in deciding the question on merits. Hence is the finding of Tribunal on merits liable to be set aside.?" The appeal is admitted on the following question of law and is by consent taken up for final hearing. The Tribunal came to the conclusion that the demand by the Revenue was beyond the period of limitation of one year prescribed under Section 73(1) of the Finance Act, 1994 and that the period of five years could not have been invoked. That part of the judgment of the Tribunal has been confirmed in the companion appeal. Once that be the position and the Tribunal having came to the conclusion that the extended period of limitation could not have been validly applied, the Tribunal, in our view, acted outside its jurisdiction in entering upon the merits of the dispute on whether the demand for duty should be confirmed. Once it is held that the demand is time barred, there would be no occasion for the Tribunal to enquire into the merits of the issues raised by the Revenue. In State Bank of India Vs. B.S. Agricultural Industries (I) [AIR 2009 SUPREME COURT 2210], the Supreme Court dealt with a situati....