Customs, Excise and Gold Tribunal - Calcutta
Jay Kay Exports And Industries vs Commissioner Of Cus. (Port) on 3 July, 2003
Equivalent citations: 2004(163)ELT359(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
1. After dispensing with the condition of pre-deposit of penalty of Rs. 55,000/-, we take up the appeal itself inasmuch as the issue is covered by the earlier decision of the Tribunal in the appellants' own case.
2. The brief facts of the case are that the appellants imported polyester fabric and claimed the classification of the same under Heading 5407.61. The Revenue, on testing of the samples, was of the opinion that the goods are properly classifiable under Heading 5407.69. The appellants accepted the classification as proposed by the Revenue and also agreed to pay differential duty involved. However, proceedings were initiated against them for confiscation of the fabric as also for imposition of penalty which culminated into the impugned order passed by the Commissioner of Customs.
3. Shri Sudhir Mehta, ld. Advocate, submits that he is not disputing the classification adopted by the Revenue but submits that there was no justification for confiscation of the goods and for imposition of penalty inasmuch as the importer had correctly described the goods as polyester fabric and according to their own understanding has claimed the classification under Heading 5407.61. He submits that there are a number of decisions of the Tribunal to that effect that wrong claiming of classification in the Bill of Entry by itself is no criteria for confiscation of the goods or for imposition of penalty.
4. After hearing Shri T.K. Kar, ld. SDR, for the Revenue, we find that the Commissioner in his impugned order has observed that "............. it is true that broadly the goods imported are polyester fabric but in absence of proper nomenclature the goods could not be assessed properly". The above observation made by the adjudicating authority reflects upon the bona fide of the appellants that the imported goods were described by them properly. Finalisation of the Tariff heading under which the goods would fall is the ultimate job of the Customs authorities and if the appellants has claimed wrong classification according to his limited understanding of the Customs Law, he cannot be attributed mens rea on his part. In the earlier Order No. A-1019/Kol/2002, dated 11-10-2002 [2003 (161) E.L.T. 443 (Tribunal)] in the same appellants' case, the Tribunal has observed in Para 5 as under :-
"5.1 have considered the submissions of both sides. I agree with the contention of the ld. Advocate that this is not a case for confiscation of the goods or for imposition of personal penalty upon the appellants, inasmuch as admittedly, the goods imported by them were polyester fabrics and the appellants had made a declaration of classification in accordance with their own understanding. They were also never approached by the Customs authorities to give more details about the technical specifications of the fabrics and they have right from the beginning, conceded to go by the result of the test reports and if there was any change of the classification of the fabric based upon test report, they were ready to abide by the same. In these circumstances, I am of the view that the imposition of redemption fine and personal penalty upon the appellants was not justified. The same are accordingly set aside."
5. By following the above decision, we find no justification for confiscation of the fabric or for imposition of penalty upon the appellants. The same is accordingly set aside.
6. As regards the clearance of the goods under D.F.R.C., we find that the said issue was not the subject-matter of the adjudication proceedings. In fact, there is no detailed discussion in this regard in the impugned order and there is one line in paragraph 17 of the impugned order as under: -
"17. The request of the importer for clearance of the goods under DFRC cannot be acceded to......", We order for expunging the said line from the impugned order. However, to make it clear that the Customs authorities are at liberty to look into the aspect of clearance of the goods under D.F.R.C. afresh, if they so desire. Needless to say that before taking any decision on the said issue, the appellants should be given an opportunity to present their case. The appeal is allowed in the above terms. Stay petition also gets disposed of.