TaxTMI 
TaxTMI 
2025 (9) TMI 1546
X X X X Extracts X X X X
X X X X Extracts X X X X
....ansformation that is entailed upon appending 'ortho' to 'phthalate' to distinguish the two and at stake is the consequential recovery of Rs. 8,22,66,315 as duty 'short paid' under section 28 of Customs Act, 1962, along with appropriate interest under section 28AA of Customs Act, 1962, saddled on 52 consignments imported between 14th May 2016 and 18th April 2017 stemming from denial of eligibility to exemption notification [no. 152/2009-Cus dated 31st December 2009] attending upon goods claimed to be liable to rate of duty corresponding to tariff item 2917 3920 in First Schedule to Customs Tariff Act, 1975. 2. Proceedings were initiated in relation to 58 bills of entry for the period commencing from 23rd June 2015 but the imports effected....
X X X X Extracts X X X X
X X X X Extracts X X X X
....[N102960 dated 17th May 2010] of United States Customs to reinforce the conclusion. Thus, we notice that the outcome of adjudication has been built upon the test report, the underlying theme for classificatory disaggregation in the circular and the chemical structure of the imported goods. 5. According to the Learned Counsel for appellant, the adjudicating authority was in error inasmuch as the report was not tenable and the challenge thereof, in letter dated 25th October 2016, had been ignored. It is also submitted that the test report was not conclusive as evident from the wording therein and that these could, at best, be restricted to the imports made in November to December 2016 that, as set out by the Tribunal in Vivek Metals v. Com....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... without any contest on the part of the assessing authorities. It is also submitted that recourse to rule 3 of the General Rules for the interpretation appended to the First Schedule to the Customs Tariff Act, 1975, which prevailed once the restricted applicability of note 3 in chapter 29 was done with, was not inappropriate as there was no dispute in the applicable heading unlike at the sub-heading level with one of the rival descriptions being residual. Reliance was also placed on the decision of the Tribunal in Commissioner of Customs, New Delhi v. Vee Kay Polycoats Ltd [2013 (292) ELT 254 (Tri.-Del.)] in which the interchangeable deployment as trivial names was acknowledged in favour of the classification claimed by them at the time of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roxyacids and their derivatives:' is not in dispute which traverses to the several descriptions at the sub-heading level. Insofar as resolution of disputes over classification dispute is concerned, the proposal-in-substitute must not only undergo adherence to General Rules for Interpretation of the Import Tariff appended to Customs Tariff Act, 1975 but also the onus devolving upon the tax authorities, as set out by the Hon'ble Supreme Court, in Hindustan Ferodo Ltd v. Collector of Central Excise [1997 (89) ELT 16 (SC)], this 'It is not in dispute before us as it cannot be, that onus of establishing that the said rings fell within Item No. 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assumi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not find any rational basis for such affirmation inasmuch as the circular has emanated from a doubt stemming from placement of 'orthophthalates' preceding 'dioctyl phthalate' in the tariff. The said circular proceeds on the assumption that the Central Government was bound by the entries as fait accompli and it was necessary to 'split hairs' for alleviating distress among assessment authorities; in the process, it was overlooked that 'dioctyl phthalate' was deliberate inclusion at the 'eight digit level' and that 'dioctyl orthophthalate' was essentially a sub-heading. It was for the circular to explain the reasons for the former to be placed under the residual sub-heading and, in the absence of any, the circular lacks validity to guide clas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es, halides, peroxides, peroxyacids and their derivatives' put together, to be covered by 'others' as 'sub-heading'-cum-'sub-classification' in heading 2917 of First Schedule to Customs Tariff Act, 1975. The deliberate inclusion of 'dioctyl orthophthalates' in the residuary category must have been motivated by some reason and logic in the light of the structure in the tariff and, especially so, in the context of the '-' and '--' levels. This aspect has not been examined by the adjudicating authority. 11. Moreover, the test report itself does not appear to be conclusive inasmuch as '6. The RSSs in respect of Bills of Entry Nos. 7652803 dated 30/11/2016, 7835983 dated 15/12/2016, 7733020 dated 07.12.2016, 7837534 dated 15.12.2....