M/S. Itc Ltd vs C.C. New Delhi (Icd Tkd)

[Arising out of Order-in-Original No. CC(A)/CUS/45/2014 dated 17.02.2014 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. ITC Ltd. .Appellants

Vs.

C.C. New Delhi (ICD TKD) .Respondent

Appearance:

Shri Ajay Agarwal, Advocate for the Appellants

Shri G.R. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 27.05.2015

FINAL ORDER NO. 51763/2015-CU(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order wherein redemption fine and penalty has been imposed on them for mis-classification of the goods.

2. The facts of the case are that appellant imported 11 nos. of checkweigher and filed Bill of Entry through CHA for clearance of the said goods. The appellant claimed classification of the said goods under CTH 84388090 and claim the concession rate of duty of customs in terms of notification no. 12/2012. The goods were examined and it was held that the said goods were not classifiable under CTH 84388090 but they are classifiable under 84238190. With these findings it was held that appellant has mis-declared the goods. Therefore, goods are liable to be confiscated under section 111(M) of the Customs Act 1962. Consequently, redemption fine and penalty were imposed on the appellant. On appeal before the Ld. Commissioner (A) the redemption fine was reduced but penalty was confirmed. Aggrieved from the said order appellant is before me.

3. The Counsel for the appellant submits that appellant has not mis-declared the goods, in fact, they have given proper description of the goods in the Bill of Entry but inadvertently sought classification under CTH8438 instead of 8423. He further submits that it is the duty of the assessing officer to classify the good properly although appellant has claimed classification under wrong heading but the Adjudicating Authority have to see the description of the goods and accordingly assess the duty payable by them on proper classification.

4. In these, as there is no mis-declaration on behalf of the appellant therefore redemption fine and penalty are not imposable as goods are not liable for confiscation under section 111(M) of the Customs Act 1962. He relied on the decision of International Exim Agency Vs. CC Chennai-2009 (242) ELT 267 (Tri-Chennai) and Hindustan National Glass & Ind Ltd. Vs. CC Calcutta-2002 (145) ELT 162 (Tri-Kolkata).

5. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that it is the case of mis-declaration of the goods. Therefore, redemption fine and penalty is imposable on the appellant. To support his contention he relied on the decision in the case of CC New Delhi Vs. Art Alive 2014 (314) ELT 632 (Tri-Del).

6. Heard the parties. Considered the submissions.

7. It is a case where appellant has given complete description of the goods in Bill of Entry which is accompanied with the invoices. The appellant sought classification of the goods under CTH 8438 instead of 8423 and claiming wrong classification does not liable the goods for confiscation. The case laws relied upon by the Ld. AR in the case of Art Alive (Supra) are not applicable to the facts of this case as in that case it was mis-declaration of the quantity of the goods, whereas in this case appellant has claimed classification of the goods under some other CTH instead of proper classification. Similar issue came up before this Tribunal in the case of International Exim Agency (Supra) and the Hindustan National Glass & Ind Ltd. (Supra) wherein this Tribunal held that claiming wrong classification does not liable the goods for confiscation under section 111(M) of the Customs Act 1962. In this case also description of the goods given by the appellant is correct but only they have claimed wrong classification. Therefore, I hold that goods are not liable for confiscation under section 111(M) of the Customs Act 1962. Consequently, redemption fine and penalty are not imposable on the appellant.

8. In these terms, impugned order is set aside, appeal is allowed with consequential relief if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

3

C/54710/2014-CU(SM)