TaxTMI 
TaxTMI 
2026 (6) TMI 959
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct dated 09.11.2017 with JOY Global (UK) for supply of mining machineries viz., joy continuous miner, battery hauler, twin bolter and feeder breaker along with mandatory spares. 3. Pursuant to the above agreement, the Appellant had imported four (4) sets of battery haulers through the following three Bills of Entry: - Sl. No. BOE No. & Date Material Description Gross Weight No. of Crates Invoice Value (USD) 1. 2736350 dated 06.04.2019 Part of 2 No. of Joy Battery Hauler including 6 batteries & 2 battery charger in CKD Condition (part of mining) 76595 Kgs. 25 Crates 1643919.42 2. 2927883 dated 22.04.2019 Part of 2 No. of Joy Battery Hauler including 6 batteries & 2 battery charger in CKD Condition (part of mining) 54430 Kgs. 4 Crates 169984.58 3. 7113686 dated 04.03.2020 2 No. of Joy Battery Hauler including 6 & 2 battery charger in CKD Condition (mining machine) 124602 Kgs. 27 Crates 1813904 4. Although the appellant had placed order for battery haulers, the 2 battery haulers imported vide the first two Bills of Entry, unlike the third Bill of Entry, could not be imported on a single ship/ vessel due to l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppearing on behalf of the appellant have made various submissions in support of their contentions, which can be broadly summarized as under: - A. EXTENDED PERIOD OF LIMITATION IS NOT INVOKABLE (i) In terms of Section 28(1) of the Customs Act, 1962, the normal period of limitation for initiation of proceedings by issuing an SCN is 2 years from the date of out-of-charge order. Section 28(4) of the Customs Act, 1962 provides that the period of 2 years can be extended up to 5 years subject to the fact that the department proves that the importer has engaged in collusion or has suppressed any fact or made any wilful misstatement while clearing the goods. (ii) The Appellant submits that demand confirmed vide the impugned order pertains to the Bills of Entry dated 06.04.2019 and 22.04.2019 and the out of charge order was issued on 17.05.2019 whereas the underlying SCN was issued only on 13.12.2023. Hence demand confirmed for the entire period is barred by limitation. Claiming benefit under the notification for goods pertaining to a certain chapter under the Customs Tariff would not amount to wilful misstatement or suppression of facts (iii) That in the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion can now be alleged against the appellant. (vii) Therefore, the appellant contends that the extended period of limitation is not invokable in the instant case and thus, the impugned order is liable to be set aside. B. BATTERY HAULERS IMPORTED VIDE BILLS OF ENTRY DATED 06.04.2019 AND 22.04.2019 QUALIFY AS IMPORTED IN CKD CONDITION. (i) The primary basis for confirmation of demand against the appellant is that battery haulers imported through Bills of Entry dated 06.04.2019 and 22.04.2019 were not in CKD condition but imported as part shipment in split way; hence, the Revenue alleges that the appellant is not entitled to avail concessional duty of 15% under Sl. No. 524(a) of Notification No. 50/2017-Cus. The only finding in the impugned order (paragraph 13.6) is that the goods imported by the importer do not become a complete article since they are not presented together as a complete article in CKD condition. (ii) The appellant submits that the imported goods fall under Sl. No. 524(a) of Notification No. 50/2017-Cus. The relevant entry of the notification is as follows: 524 8702 or 8704 Motors Vehicles: (a) If imported as a as a Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as: * Subject battery haulers imported through two different bills of entry, were presented together for customs clearance. Screenshots of the Icegate portal reflecting the date of out of charge for Bills of Entry bearing No. 273650 dated 06.04.2019 and 2927883 dated 22.04.2019 have been placed on record. * Components of two Bills of Entry, when presented together, represent essential character of a battery hauler. For instance, under Bill of Entry No. 273650 dated 06.04.2019, the consignment contained all the components of a battery hauler except trailer and tractor viz., tyre & wheel, battery charger, battery assembly, plug, connector, magnetic holder etc. On the other hand, consignment under second Bill of Entry no. 2927883 dated 22.04.2019 comprised of only tractor and trailers (two quantities each). Such bills of entry when presented together clearly depicts that the consignment consists of two sets of battery haulers in CKD condition. * Even the impugned order at paragraph 13.4 observes that the weight and value of the consignments imported by the two subject bills of entry was equal to the total weight and value of the complete battery hauler. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....TRY DATED 06.04.2019 AND 22.04.2019. (i) It has been further submitted that the assessment orders being quasi-judicial orders can only be set aside by an order of the competent appellate authority in appellate proceedings; that quasi-judicial orders cannot be sought to be set aside by mere issuance of a Show Cause Notice, which has proposed to modify the assessment orders in the instant case. (ii) The Hon'ble Supreme Court in ITC Ltd vs. CCE, Kolkata-IV [2019 (368) E.L.T. 216 (S.C.)] observed that that an order of self-assessment is nonetheless an assessment order passed under the Customs Act, so it would be appealable by any person aggrieved thereby; the Department, as well as the assessee can prefer an appeal aggrieved by such order of assessment. (iii) In the present case impugned goods imported by the appellant were cleared for home consumption on the strength of duly assessed Bills of Entry. There is no dispute regarding this factual position. Therefore, if the Revenue was aggrieved by the self-assessment undertaken by the appellant, instead of issuing the underlying SCN, an appeal under Section 128 of the Customs Act, 1962 should have been filed by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is an undisputed fact that the imported goods were cleared for home consumption upon payment of duty. The Ld. Commissioner in the operative part of the impugned order has held that 'since the goods have already been cleared, I impose a redemption fine...'. It is submitted that it is settled position of law that when goods are not available for confiscation, redemption under Section 125 of the Customs Act cannot be imposed. (ii) The Hon'ble Bombay High court in Commissioner v. Finesse Creation Inc [2009 (248) E.L.T. 122 (Bom.)] has held that once the goods are not available for confiscation no fine can be levied [approved by the Hon'ble Supreme Court in Commissioner v. Finesse Creation Inc. [2010 (255) E.L.T. A120 (S.C.).] (iii) The aforesaid ruling has also been followed by this Tribunal in M/s Reach Infocom Tech Pvt. Ltd., Ms Kinjal Desai Versus Commr. of Customs (Airport & Admin), Kolkata [2025 (11) TMI 210 - CESTAT KOLKATA.] (iv) In light of the aforesaid judgments, it is submitted that in the present case since the impugned goods in question have been cleared for home consumption, the same have lost the character of being imported goods under the Act ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the issue involved is technical in nature, for which no wilful mis-statement or suppression of facts can be attributed on the part of the importer. Mere claiming of benefit under a Notification cannot be construed as mis-statement of material facts in the Bills of Entry. It is also a settled position of law that mis-classification of a product or claiming the of benefit under a Notification, can never be a ground for alleging suppression or wilful misstatement of fats, so as to invoke the extended period of limitation. This view has been expressed by the Tribunal in the case of M/s. Madhepura Electric Locomotive Pvt. Ltd. versus Principal Commissioner of Customs (Port) Kolkata [2025 (3) TMI 789-CESTAT Kolkata]. The relevant portion of the said order is reproduced below:- "4.1. He further submitted that the extended period of limitation is not invokable in the facts and circumstances of the case; the import took place during November, 2017 to January, 2018 whereas the Show Cause Notice has been issued on 29.07.2020 by invoking the extended period of limitation. It is his contention in this regard that claim of classification under a particular Customs Tariff would not am....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, we hold that there is no suppression of facts with intention to evade payment of tax established in this case and hence, we hold that the Show Cause Notice issued on 26.12.2013 by invoking the extended period of limitation is not sustainable. Thus, we hold that the re-classification of the imported goods vide the 17 Bills of entry under CTH 2710, on the basis of Test Report received from IIT, Kharagpur, is not sustainable. Accordingly, we set aside the demands confirmed in the impugned order in respect of all these 17 Bills of Entry." (Emphasis supplied) 11.4. In fact, the Department was well aware of the fact that the appellant was engaged in the import of goods in CKD condition and also that in respect of such imports, the appellant was availing the benefit of Sl. No. 524(a) of Notification No. 50/2017-Cus. It is on record that at the time of importation, the appellant made all necessary declaration in the Bills of Entry and invoices were also submitted by them. Further, the subject Bills of Entry also clearly mention that the goods imported are in CKD condition. Thus, it is clear that all the relevant facts were within the knowledge of the Department and hence, suppress....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt. The Hon'ble Supreme Court in the case of ITC Ltd, has held as under: 47. When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act. 11. We observe that the ratio of the above said decision is squarely applicable in this case. We find that the impugned order passed demanding differential duty without challenging the original assessment of the Bills of entry is not sustainable. Hence, the demand is not sustainable on this count also." 12.2. The above order has been upheld by the Hon'ble Tripura High Court as reported in 2025 (10) TMI 73 - TRIPURA HIGH COURT. 12.3. Therefore, we also hold ....