2016(11)LCX0135

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI [COURT NO. I] S/Shri

M.V. Ravindran, Member (J) and Raju, Member (T)

Commissioner of Customs (EP), Mumbai

Versus

P.B. ENTERPRISES

Final Order No. A/94173/2016-WZB/CB, dated 3-11-2016 in Appeal No. C/638/2006-Mum

Advocated By -

Shri M.K. Mall, Asstt. Commr. (AR), for the Appellant.
None, for the Respondent

[Order per :

M.V. Ravindran, Member (J)]. - This appeal is filed by Revenue against Order-in-Appeal No. 78/2006/MCH/JC/Group VII/05, dated 23-2-2006.
2. None appeared on behalf of the respondent. Heard learned DR and perused the records.
3. The issue that falls for consideration in this case is regarding classification of the products imported by the respondent. The respondent imported
"Bleaching Earth V2 Super "Galleon" and filed bill of Entry No. 6204, dated 16-4-1999 seeking classification of the product under CTH 2508 20. The said bill of entry was assessed and clearance was allowed under the Customs Tariff Act, 1975, as claimed by the respondent; subsequent to the clearance, show cause notice, dated 17-3-2004 was issued alleging that there was misdescription of the product and wrong classification sought as the product was manufactured by treating acid clay with mineral hence the product merits classification under CTH 3802 90. The show cause notice was contested on merits before adjudicating authority. Adjudicating authority after following due process of law reclassified the product to CTH 3802.90 and confirmed the differential amount of duty with interest and also imposed penalties. Aggrieved by such order, an appeal was preferred before first appellate authority who after extending an opportunity of hearing, set aside the order-in-original holding that there was no misdeclaration and the demands raised by invoking the extended period is also incorrect.
4. After hearing the submissions made by learned DR we find that the
case of Revenue has no merits inasmuch as the first appellate authority has rec-
orded a detailed reasoning which is as under :-
"Similarly, appellant has relied upon many other judgments where it was clearly held that where the full description is given on the basis of which classification was done, subsequent reclassification of the same product under different tariff headings on the basis of same declaration cannot be considered as misdeclaration, further where description or correct chemical name of the product is given then there can be no case of misdeclaration. Here appellant has much strong case, as there is no evidence placed on record to show that the goods imported by the appellant are correctly re-classifiable under tariff heading 3802, hence, these goods were correctly classified under tariff heading 2508, therefore, no case of suppression, hence it is held that demand issued by the department is time-barred. Since, the order-in-original is liable to be set aside on this ground alone, so there is no need to discuss the issue on merits.
However, I would like to mention that appellant has placed on record similar goods i.e. highly activated bleach earth imported by other importers, vide bill of entry no. 433729, dated 7-2-2004 bill of entry no. 47066, dated 17-6-2004 bill of entry no. 474077, dated 29-6-2004, were classified by Mum-bai Customs House under CTH 2503 22 of the Customs Tariff Act, therefore, assessment made in the year 1999 appears to be correct. Further, in response to show cause notice appellant wrote a letter to department on 6-4-2004 which was duly received on 12-4-2004 stating that they had not received the copy of the bill of entry, test certificate/analysis certificate/inspection certificate and in absence of those documents they would not be in a position to reply to demand, show cause notice and they would be filing the reply only after receipt of those documents, in the mean time they requested to proceed further. However, the case was decided ex parte without giving them test report and analysis report as asked by the appellant. Since, the case was decided without giving them copy of the test report or analysis report without waiting for reply to show cause notice and without giving them personal hearing, so it is held that order was passed in complete violation of principles of natural justice. In the order it was mentioned that copy of the bill of entry was supplied but there is no mention as to why the copy of the test report or analysis report was not supplied to them hence order-in-original is liable to be dismissed on this ground also."
4.1 As against the above recorded factual findings of the first appellate authority we find the 'Grounds of Appeal' of the department is not contraverting the same by any other evidence in the support of department. It is also to be noted that the appellant had filed bill of entry by describing the product as bleaching earth V2 Super 'Galleon' and claimed classification under sub-heading 2508 20. The Chapter sub-heading of 2508 20 describes the product that may fall under the sub-heading which are Decolourising earth and Fuller's earth. In our view the product imported by appellant 'Bleaching earth' may or may not be Decolourising earth but Chapter sub-heading 3820 90 covered "Activated Natural Mineral Products" wherein the goods can be classified. In the case in hand, there is nothing on record to show that samples of the imported goods were drawn and analysed to arrive at a conclusion that these products are Activated Natural Mineral. In the absence of any cogent evidence to show that the product would merit classification under Chapter sub-heading 3820 90, we hold that the impugned order is correct and does not require any interference.
5. The impugned order is upheld and the appeal is rejected.
(Order pronounced in Court)

Equivalent 2017 (349) ELT 0301 (Tri. - Mumbai)