TaxTMI 
TaxTMI 
2026 (2) TMI 194
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....revealed that the appellant divided the goods into 15 sections and although in the invoices, the HS Code for the goods was mentioned as 9022 1400, the appellant, deliberately declared the goods as 'Radiation Beam Delivery Unit / Equipment' under Tariff Heading 9022 9030, to avail an ineligible duty exemption. The correct classification as per revenue appeared to be under CTH 9022 1490, as 'Cancer Therapy System'. After issue of Show Cause Notice (SCN), dated 26.09.2017 and following the due process of law, the Ld. Commissioner of Customs rejected the classification adopted by the appellant and confirmed reclassification of the goods under CTH 9022 1490. He demanded differential duty of Rs.1,57,71,212/- along with interest and imposed equal penalty under sec. 114A. The imported goods were also confiscated with an option to redeem the goods on payment of fine of Rs. 15 lakhs. Hence the present appeal. 3. The learned Advocate Shri S. Murugappan appeared for the appellant and Ld. Authorized Representative Shri Sanjay Kakkar appeared for the respondent. 3.1 Shri S. Murugappan Ld. Counsel for the appellant submitted that the appellants imported two consignments of Linear Accelerato....
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....(a) do not apply. In this regard, the decision of this Tribunal in the case of MIOT Hospitals Pvt. Ltd., [(2024) 24 Centax 24 (Tri.-Mad)], was relied upon. The Ld. Counsel prayed that the impugned Order-in-Original may be set aside with consequential relief. 4. Shri Sanjay Kakkar Ld. A.R. in counter submissions stated that SCNs under Section 124 of the Customs Act are not bound by strict timelines. Further determination of duty has to be in accordance with Section 125(2) of the Customs Act, taking into consideration the machinery provisions of Section 28. He placed reliance on the following case laws listed chronologically - i) Mohanlal Devdanbhaichoksey and Others Vs MP Mondkar and Others [1988 (37) Ε.L.Τ. 528 (Bom.) - High Court, Bombay, Dated 02.03.1976] ii) Commissioner of Customs (Preventive), Jodhpur Vs Swees Gems and Jewellery, Aaradhya Impex [2019 (368) E.L.T. 455 (Raj.) - Rajasthan High Court, Dated 25.07.2019] iii) Commr. of Cus. (Import), Mumbai Vs Jagdish Cancer & Research Centre [2001 (6) SCC 483] - Supreme Court, Dated 02.08.2001] iv) Fortis Hospital Ltd. Vs Commissioner of Customs, Import [2015 (318) E.L.T. 551 (SC)]....
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....ay be rejected. 5. The Ld. Counsel for the appellant after the public hearing has made a further written submissions on 08.08.2025 as permitted, summarizing his response to the oral arguments presented by the Ld. A.R. before us. He stated that the SCN in this case was issued by invoking the extended period under Section 28(4) of Customs Act, 1962. Based on such notice, specific order is issued by the respondent by confirming demand for payment of differential duty in terms of Section 28(4) of Customs Act, 1962. Hence, it is not open to the departmental representative now to state that the duty can be demanded in terms of Section 124 of Customs Act without reference to the limitation under Section 28. He stated that in Commissioner of Customs (Import), Bombay Vs. VXL India Ltd. [2006 (193) ELT 396 (Bom.)], the Hon'ble Bombay High Court approved of the Tribunal's order holding that section 125(2) of the Customs Act is not intended to be used as a substitute for the provisions of section 28 of the Act when circumstances prevent resort to that section. 5.1 It is to be noted that the customs have not come on appeal against the order of the Commissioner confirming duty demand under....
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...., summarizing his response to the oral arguments presented by the Ld. A.R. before us. The Ld. A.R. submitted that the appellant has attempted to classify the Linear Accelerator (LINAC) under 9022 9030 by equating it to a Radiation Beam Delivery Unit, which is factually incorrect, as per the literature available on the supplier - Varian's website. The Radiation Beam Delivery Unit is only a part of the whole machine (Cancer Therapy Apparatus) and neither is the Radiation Beam Delivery Unit having any functionality on its own, nor can the Linear Accelerator function without the same. 6.1 Finally, honesty in declaration would have demanded that the 'first-check' be sought with the classification that the importer was advised of, in the heading that appeared on the Invoice, as no liability arises at the stage of 'first-check' appraisement of goods. All actions of the importer-appellant would indicate a pre-meditated attempt to deceive the executive with a wrong input of classification, using a split-shipment for which the legal option of provisional assessment always existed with the importer. He placed reliance on the following citations, where penalty was impose....
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....t examined on 30.03.2016, by the department, catalogs and documents found in the consignments were perused and then assessed to duty by the proper officer. The goods were assessed and duty paid on 08.05.2016 as stated at para 13.1 of the SCN. Hence the SCN issued after one year from the date of which the proper officer makes an order for the clearance of the goods, is time barred. 10. Per contra, revenue while accepting that the goods were subjected to First Check submitted that, the import involved the suppression of facts because: A. The date of the proforma invoice of the supplier was 25.09.2015 and the date of purchase order was 20.09.2015. On the said date, the importer was eligible for duty benefits, However, by issue of Notification 19.01.2016, BCD @ 5% was restricted only for a few tariff entries (including 9022 9030) and the concessional rate of duty for tariff entry 902214 was removed, restoring the merit rate of duty by the time of filing the BE's on 18.03.2016. The importer hence deliberately mis declared the classification of the goods to get an undue duty advantage. B. The importer split the consignment and filed two BE's although the suppliers in....
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....able supplier or that of the Customs Broker. However, the knowledge and expertise of a qualified doctor who was also the CMD of the importing firm, choosing to classify the goods against their character and actual use, cannot be seen as coincidental. Additionally, there was no justification for requesting a 'first check' by declaring an evidently incorrect classification, especially since no liability arises at the 'first check' stage. These actions suggest a deliberate and pre-meditated attempt to mislead authorities with an incorrect classification, using split shipments and despite the availability of the facility of provisional assessment. 13 It would at this stage be relevant to examine the charges made in the SCN. Para 29 of the SCN is reproduced below. 29. In view of the fore-going, M/s Nagarjuna Hospitals Limited (holder of IEC No 0904002411) having registered office at No 7-70, Kanuru, Vijayawada, Krishna District, Andhra Pradesh- 520007are called upon to show cause to the Commissioner of Customs, Commissionerate II, Custom House, Chennai, 600001 as to why; A. The classification of Goods namely One Set of "True Beam" Linear Accelerator ....
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.... cannot be based on assumptions which arise from personal beliefs, perception, suspicion, doubt, prejudices etc. and which as the words suggest are made without proof or any logical reasoning by assessment of the facts. Presumption, that are a probable consequence or inference drawn from facts, plays an important role in legal proceedings. In fact the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872. [Section 2(1) of the Bharatiya Sakshya Adhiniyam, 2023] The presumptions falling under the former category are known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". The example of a legal presumption is of section 12B of the Central Excise Act, which deems that incidence of duty has been passed on to the buyer. However, a factual presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning. What we find from the submissions of the Ld. A.R. regarding fraud committed by the importer are in the nature of assumptions. 16. The fact that the appellant sought clarification from th....
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.... act for having come forward to seek a change of classification and even have the goods examined before clearance, is without merit. The SCN hence fails the test of having been issued within the normal time limit and is hence barred by limitation. 17. We next take up the Ld. A.R's submissions that SCNs under Section 124 of the Customs Act are not bound by strict timelines. That further determination of duty has to be in accordance with Section 125(2) of the Customs Act, taking into consideration the machinery provisions of Section 28. We find that the point of law now raised is a substantive one. However, it does not find any mention in the charges framed in the SCN. It is well settled that the SCN is the foundation in the matter of levy and recovery of duty, penalty and interest and that all allegations to be met by the respondent have to be clearly spelt out in it, so that the respondent can make a proper defense of his case. [See: Commissioner of Central Excise, Nagpur Vs Ballarpur Industries Ltd. - 2007 (215) E.L.T. 489 (S.C.)]. It was further held by the Supreme Court in COMMISSIONER OF C. EX., BANGALORE Vs BRINDAVAN BEVERAGES (P) LTD. [2007 (213) E.L.T. 487 (S.C.)], as und....