2001(11)LCX0234

IN THE CEGAT, EASTERN BENCH, KOLKATA

Smt. Archana Wadhwa, Member (J) and Shri K.K Bhatia, Member (T)

HINDUSTAN NATIONAL GLASS & IND. LTD.

Versus

COMMR. OF CUS., CALCUTTA

Order No. A/1254/KOl/2001, dated 21-11-2001 in Appeal No. C/R-443/2001

Advocated By :   Shri B. Saha, Advocate, for the Appellant.

Shri A.K. Mondal, JDR, for the Respondent.

[Order per : K.K. Bhatia, Member (T)]. - The appellants imported Molybdenum Electrodes valued at Rs. 1,31,101.56 and classified the same in their Bill of Entry No. 351, dated 16-9-2000 under Customs Tariff Heading 8545.11. On examination of the goods by the Customs Authorities it was observed that in the Bill of Entry the party had described the goods as ‘Smooth Forged’ and amplified it ‘Electrode for Glass Melting Furnace’. The goods were however molybdenum electrodes appropriately to be classified as coated electrodes of base metal for electric arc welding u/h 8311.10 and as against the declared duty of 25% BD + 16% CVD, the same were subject to customs duty at 30% BD + 10% SC (surcharge) + 16% CVD. The Customs Authorities prima facie held the view that importer had misdeclared the goods and had attempted to evade the payment of duty at appropriate rates. Accordingly, the proceedings were initiated against them. The appellants vide their letter dated 28-9-2000 waived the show cause notice. The Additional Commissioner of Customs, Air Cargo Complex passed an order dated 11-10-2000 in which he observed that though the supplier in its invoices had mentioned the goods to be classified u/h 8102.92 - an entry for molybdenum articles, the importer in their B/E classified them under Tariff Heading 8545.11. This sub-heading relates to the description - carbon electrodes of a kind used in furnace. The Adjudicating Authority observed that the goods are appropriately to be classified u/h 8311.10 and accordingly rejected the classification u/s.h. 8545.11 claimed by the importer. He further observed that the importer acted with mala fide intention to evade customs duty by claiming the classification wrongly under sub-heading which resulted in short-levy of customs duty of Rs. 20,736.00. The Addl. Commr. of Customs ordered for the confiscation of the goods u/s 111(m) of Customs Act, 1962 but however gave an option to the party to redeem the same on payment of a fine of Rs. 8,000/-. He further imposed a penalty of Rs. 2,000/- on them and directed the goods to be classified under Tariff Heading 8311.10. The party filed an appeal but the same stood rejected by the Commissioner (Appeals), Calcutta vide his order dated 13-6-2001.

2. The present appeal is against the above order of Commissioner (Appeals). We have heard Shri B. Saha, Advocate for the appellants and Shri A.K. Mondal, JDR for the Revenue. The learned Counsel for the appellants is neither in agreement of the classification of the imported goods u/s. h. 8311.10 as directed by the original authority and upheld by the Commissioner (Appeals) nor under sub-heading 8545.11 as claimed by the importer in the B/E. He would like the goods to be classified under Heading 8102.92. However the rate of customs duty for Headings 8311.10 and 8102.92 is the same and therefore, we see no need to pronounce upon the classification aspect as of no Revenue consequence. However, we find force in the submission of the appellants that so long as the goods are correctly described in the Bill of Entry, a wrong classification by itself could not be the ground for subjecting them confiscation and imposition of a penalty. There is no adverse findings in the order of the Additional Commissioner about the description of the goods and therefore, there is no warrant to subject them to a penal action. In this view of the matter while upholding the order of the demand for differential duty, we set aside the confiscation of the goods, imposition of redemption fine and penalty. The appeal is thus partially allowed.

_______

Equivalent 2002 (145) ELT 0162 (Tri. - Kolkata)