AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2026 (5) TMI 28
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..../20- 21/117/2020 DATED 28.07.2021 28/JS/ADC/SIRIA/ICD- PPG/2022 dated 18.01.2022 Differential Duty of Rs. 5,74,280/- and Penalty of Rs. 50,000/- CC(A)CUS/D - II/ICD/PPG/ 866867/202223 dated 25.07.2022 C/50007/2023 C.No. VIII/6/ICD/PPG/Gr5/TAM-21/20- 21/117/2020 DATED 28.07.2021 28/JS/ADC/SIRIA impex/ICD-PPG/2022 dated 18.01.2022 -do - -do- 3. The facts, in brief, for the present adjudication are as follows:- That the appellant had filed several Bills of Entry for import of "Molybdenum Mirror and Shields" declaring the classification under CTH 81029590 attracting Basic Customs Duty [BCD] @ 5%. However, during the course of the audit of those Bills of Entry got classified under CTH 81029900 attracting BCD @ 10%. Vide the audit report dated 22.02.2021, the Audit team observed the mis-declaration of imported goods has resulted into short levy of duty amounting to Rs. 16,78,288/-. The appellant was called upon to explain the same vide letter dated 14.08.2020 and 13.11.2020. The appellant disagreed with those objections vide their letter dated 23.08.2020 on the various grounds mentioned in the said letter. Being un-satisfied of that reply, the depar....
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....ate act of mis-declaration committed with intention to pay less customs duty so as to evade the remaining. It is submitted that the findings of Commissioner (Appeals) that the impugned goods are flat surfaced products as different from flat products to deserve classification under CTH 81029590 are apparently wrong findings. Chapter Note 1(g) to Chapter 74 which is applicable Mutatis mutandis for the goods of Chapter 81 (heading 8102) is impressed upon which does not include the curved mirrors/shields. Since at the time of import, the goods were not presented in the form of sheets rather in the form of curved mirror/shields, the correct classification has to be under CTH 81029900. Thus Commissioner (Appeals) has wrongly held the declaration under CTH 81029590 as was declared by the importer as correct, thereby wrongly allowing the importers appeal. 4.2 It is further submitted that Rule 3(c) of General Rule of Interpretation [GRI] has rightly been applied. Rule 3(a) and/or Rule 3(b) of GRI have not been dealt in view of importer's own acknowledgment of two categories of "other" in heading No. 8102. The goods have wrongly been classified under such "other" category which comes firs....
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....iod which overlaps/covered under the impugned show cause notices. The Department has not denied the said fact. 7. Further, it is submitted that even in terms of Note (1) (g) of Chapter 74, the term plates/sheets/foil/mirror, the flat surfaced products of a uniform thickness, of shape other than rectangular or square of any size provided that they do not assume the character of articles or products of other headings. The item in question had not acquired the character of an 'article'. For this reason also, the classification of appellant is rightly held by the Commissioner (Appeals) under CTH 81029590. With these submissions, the order of Commissioner (Appeals) is prayed to be upheld and both the Departmental Appeals are prayed to be dismissed. 8. Having heard both the parties, perusing the entire records, the issue to be adjudicated is:- Whether the imported goods i.e. "Molybdenum Shield and Mirror" are classifiable as plates/sheets/foils under CTH 81029590 attracting BCD @ 5% as claimed by the importer or the goods are classifiable as "other" articles of molybdenum under CTH 81029900 attracting BCD at 10% as was alleged by the Department. 9. To adjudicate the sam....
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.... For the purpose, we have perused Chapter Note 1 of Chapter 74 apparently defines Bars and Rods, profiles/wire and plates, sheets, strips and foils which is referred by both the parties and has been dealt with by the original adjudicating authority. From the note it is also apparent that these definitions Mutatis mutandis apply to chapter 81 also i.e. vis-a-vis the impugned imported goods. Since the importer is claiming the imported goods as plates, sheet/strip and foil, the said definition in sub-clause (g) of said Chapter Notes perused. It reads as follows:- g) Plates, sheets, strip and foil:- Flat-surfaced products (other than the unwrought products of heading 74.03), coiled or not, of solid rectangular (other than square) cross-section with or without rounded corners (including "modified rectangles" of which two opposite sides are convex arcs, the other two sides being straight, of equal length and parallel) of a uniform thickness, which are : (i) - of rectangular (including square) shape with a thickness not exceeding one-tenth of the width, (ii) - of a shape other than rectangular or square, of any size, provided that they do not assume th....
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....By parity of reasoning, "molybdenum mirrors and shields", though produced from molybdenum sheets / Foils etc., have acquired a new and specialized identity through manufacturing and functional purpose-as reflective or protective articles. They are not perceived in trade as "molybdenum sheets" and ought to be classified as "finished articles of molybdenum", not under the tariff for plates/sheets/strips/foils. 13. As per General Rules of Interpretation, Rule (1), the classification has to be determined according to the terms of headings and any relevant section or Chapter Notes, Rule 2 thereof requires that even the incomplete or unfinished article if has the essential character of the complete or finished article. It has to be considered as the complete/evidence article. Rule 3 of GRI comes into picture whereby applying Rule 2, the goods are prima facie classifiable under 2 or more headings. In that scenario, foremost the heading which provides the most specific description shall be preferred to the heading providing a general distinction as per subclause (a) of Rule 3. Sub-clause (b) of Rule 3 deals with the classification of mixture, composite goods, consisting of different mat....