TaxTMI 
TaxTMI 
2026 (7) TMI 110
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....onsignment was cleared by Customs as per the claimed classification and notification benefit. (ii) However, subsequent to clearance, the Additional Commissioner, Special Investigation Branch, Port ("SIB") had issued show cause notice based on certain intelligence that the Appellants have misclassified their product under CTH 76109090 whereas the said product is rightly classifiable under CTH 84806000, proposing a demand of customs duty amounting to Rs. 48,88,454/-, along with applicable interest and penalty. (iii) The Appellant duly replied to the show cause notice denying and disputing the contentions raised therein. However, disregarding the submissions the Ld. Adjudicating Authority, vide Order-in- Original No. KOL/CUS/PORT/JC/21/SIB/2021 dated 28.04.2021(hereinafter referred as "OIO"), confirmed the demand proposed in the Notice. Further, for the first time in the Order-in-Original, it was alleged that the preferential Certificate of Origin does not conform to Origin Rules and consequently, the benefit of Customs Notification No. 152/2009-Cus. was denied and the customs duty demand was enhanced from Rs. 48,88,454/- to Rs. 73,32,683/-. (iv) Pursuant to....
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.... Commissioner of Customs Visakhapatnam [2025 (1) TMI 747 - CESTAT HYDERABAD] 23. We also find that the reliance has been placed by the learned Advocate on the recent judgment of the coordinate bench at Kolkata, where the similar item has been held to be classifiable under CTH 76109010 and therefore, the ratio of the said judgment is applicable to the present factual matrix as the facts are more or less identical. Further, we also note that in this case, the Bill of Entry, which was cleared under self assessment, has not been challenged by the Revenue. Therefore, in view of the judgment in the case Shri Rajib Saha Vs CC (Prev), Shillong (supra), the demand is not sustainable on this count also. It is also noted that there is some force in the submissions made by the appellants that the Adjudicating Authority has gone beyond the scope of SCN by denying them the benefit of notification 152/2009 (S.No.610), in as much as there was no reasons cited in the SCN as to why the above said notification should be denied. We have perused the notification 152/2009 and we find that this is a notification provided for concessional duty in respect of imports made from Republic of Korea. In....
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....cating Authority as well as the Appellate Authority cannot travel beyond the allegations and charges set out therein. In the present case, the Adjudicating Authority has enhanced the customs duty demand from Rs. 48,88,454/- (as proposed in the Show Cause Notice) to Rs. 73,32,683/- on the ground that the imported goods were not eligible for exemption under Notification No. 152/2009-Cus since the preferential Certificate of Origin had allegedly been issued contrary to the origin criteria prescribed under the Customs Tariff (Determination of Origin of Goods under the Preferential Trade Agreement between the Government of the Republic of India and the Republic of Korea) Rules, 2009. However, it is pertinent to note that there was not even a whisper about any of the above noted facts in the show cause notice. The impugned demand, having been confirmed on ground never proposed in the Show Cause Notice, is therefore wholly unsustainable in law. C.2 The Appellant states that it is a settled law that an adjudication order cannot traverse beyond the scope of show cause notice. Reference in this regard is invited to the following decisions: i. CC vs. Toyo Engineering India L....
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....lant under CTH 84806000, as 'moulds for mineral materials', as claimed by the Revenue; (b) Whether the adjudicating authority can enhance the customs duty demand by travelling beyond the scope of the Show Cause Notice in view of the fact that the issue of certificate of origin was not raised in the Show Cause Notice, or not. Issue (a): Whether aluminum framework structures along with accessories are classifiable under CTH 76109010, as claimed by the appellant under CTH 84806000, as 'moulds for mineral materials', as claimed by the Revenue 8. We find that the issue of classification of the goods in question has been decided by this Tribunal in the case of M/s. Alcove Constructions Pvt. Ltd. vs CC (Port), Kolkata[2025(9) TMI 821-CESTAT Kolkata] wherein this Tribunal observed as under: - "6. We find from the photographs enclosed by the appellant that these are moveable Formwork which can be used at various sections of the constructed area based on the requirement of the client. The basic content of the product is Aluminium. 7. From the Explanatory Notes under HSN (copy of which was provided by the appellant), we find that under 7308.40, "Equipment for ....
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.... to the facts of the present case. Therefore, even on this count, we set aside the impugned order and allow the appeal. 9. We also find force in the appellant's submission that the Id. adjudicating authority and the lower appellate authority have traversed beyond the scope of the Show Cause Notice. Admittedly, though a proposal was made to deny the benefit of the Notification, the Show Cause Notice did not specify as to any condition which had not been fulfilled by the appellant so as to deny the benefit of the said Notification. In such a case, the appellant would not have had an opportunity to defend their case by submitting proper documentary evidence. 10. In view of the foregoing, we set aside the impugned order and allow the appeal with consequential relief, if any, as per law." 9. Further, the said issue was again examined by this Tribunal in the case of Vijay Nirman Company Pvt. Ltd. vs. Principal Commissioner of Customs Visakhapatnam[2025 (1) TMI 747-CESTAT Hyderabad]. wherein the issue has been examined by this Tribunal, observing as under: - "9. The core issue to be decided in this matter is whether imported AFM is classifiable under CTH ....
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.... (tubes, vats, paving stones, flags, chimney-pots, banisters, architectural ornaments, wall, floor or roof slabs, etc.) and also moulds for making prefabricated construction elements of reinforced or pre-stressed concrete (window frames, parts of vaulting beams, railway sleepers, etc.). 12. Learned Advocate for the appellant has shown us some photographs to better appreciate the use of Aluminium Formwork in the construction of building, structure, etc. These photographs are reproduced below for ease of reference. 13. We have seen the photographs submitted by the learned Advocate on 13.12.2024 and we find that though it has been designed for intended purpose, it is essentially Aluminium Formwork, which is used for holding the concrete when it is poured in the cavity created by placing different formwork in a vertical or horizontal manner around the steel bars and once the concrete is poured and it sets in, the inner and outer plates are removed and again used in another sector or segment of the same building and therefore, to that extent it is definitely movable. Apparently, this is used in place of the old conventional method of supporting the casting of concrete ....
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....ater date, if required. 15. CTH 7610 covers, inter alia, aluminium structures and by way of example, it includes, inter alia, roofing frameworks. The roofing framework is therefore covered within CTH 7610 and therefore, it is necessary to understand what roofing framework is and how it is different from formwork. Roofing framework refers to structural element that supports a roof and, inter alia, provides structural support and also serves as a base for roofing material. In other words, it would be permanent structure as distinct from aluminium formwork. It is here that one has to see that the heading is vast enough to cover all kinds of aluminium formwork except for clear exclusion and the example includes various types of materials and structures which are used in the construction work. It is an admitted fact that aluminium formwork has been used only in relation to construction activity and even though it is not permanently attached, it does not get excluded from the coverage under the category of 'aluminium structure' merely on this count. Similarly, in the case of definition of mould also, the moulds are primarily for shaping various things including prefabricated con....
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....Authority, by relying on purchase contracts and statutory provisions under Chapter 76 and Chapter 84 as well as HSN explanatory notes, made an observation that since the goods are predesigned and custom made shuttering material, it cannot be used for any other purpose. Therefore, in view of the HSN explanatory note, which clearly excludes structures and part of structures, which do not stay in place after construction and specific exclusion (b) which excludes coffering panels intended for pouring concrete having the character of mould from the purview of Chapter 76, came to the conclusion that the product imported by the appellant is rightly classifiable under CTH 8480. Admittedly, apart from this evidence, there is no other evidence like expert opinion or comparable imports, etc., to support the claim of the department that the goods are more in the nature of mould and not otherwise. 17. We find that these are in the nature of panels, which are predesigned, keeping in view certain designs for construction of houses, buildings, etc. These are required to be first setup in accordance with the design of the house, whereby they look like prefabricated structure. Apart from fi....
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....0 and it will be falling under Chapter 84. However, when the product itself is not a mould then the exclusion will not be applicable. The same heading also includes aluminium plates, rods, profiles, tubes and the like, prepared for use in structures. In this case, as discussed in the foregoing paras, these goods are nothing but various aluminium plates though custom designed, which are assembled at site, in situ, for construction of buildings, etc. Since in view of the use of this panel it cannot be called a mould, therefore, reclassification proposed by the department is not sustainable and classification claimed by the appellant will have to be accepted. 20. The Revenue has also relied on the judgment of CC (Import), Mumbai Vs Dilip Kumar and Co. & Ors (supra) in support that if there is a grey area, the benefit should go to Revenue. In this case, there is a contradictory classification which will decide whether the benefit of notification will accrue or otherwise and it is not the admissibility of notification, per se, which is in question. In so far as the classification is concerned, the Hon'ble Supreme Court, inter alia, debated as to how the statute should be constr....
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....ssessee. But, in a situation where the tax exemption has to be interpreted, the benefit of doubt should go in favour of the revenue, the aforesaid conclusions are expounded only as a prelude to better understand jurisprudential basis for our conclusion. We may now consider the decisions which support our view." 21. Therefore, if there is any ambiguity in a taxation provision, it is to be interpreted in favour of the subject/ assessee. However, when a tax exemption has to be interpreted, the benefit of doubt should go in favour of the Revenue. Thus, as the issue is not that of exemption and more of classification leading to demand of duty, this judgment would not help the cause of the department. In fact, going by the ratio, we find that since in this case, there could be grey area regarding coverage under Chapter 76, vis-à-vis Chapter 84 due to various interpretations not emanating from the heading itself, the benefit of doubt should be given to the appellant and not to the Revenue. The Revenue has also relied on the judgment in the case of M/s Tata Projects Ltd Vs CC, Chennai [2024 (3) TMI 1055 - CESTAT Chennai]. However, going through the judgment, it appears that....
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.... not sustainable as held by the Hon'ble Apex Court in the case of Commissioner of Customs, Mumbai v. Toyo Engineering India Ltd. 2006(201) E. L. T. 513(S.C.). Wherein the Hon'ble Apex Court observed as under:- "16. Learned counsel for the Revenue tried to raise some of the submissions which were not allowed to be raised by the Tribunal before us, as well. We agree with the Tribunal that the revenue could not be allowed to raise these submissions for the first time in the second appeal before the Tribunal. Neither adjudicating authority nor the appellate authority had denied the facility of the project import to the respondent on any of these grounds. These grounds did not find mention in the show cause notice as well. The Department cannot be travel beyond the show cause notice. Even in the grounds of appeals these points have not been taken." 12. Further, in the case of Ganpati India International Private Limited Vs. Commissioner of Central Excise Bolpur [2014(35) S. T. R. 709(Cal.) the Hon'ble High Court of Calcutta had an occasion to examine the issue wherein it was observed as under: - "4. At the time of making final adjudication, the authorities found cert....