Vijay Nirman Company Pvt Ltd Vs Principal Commissioner of Customs (CESTAT Hyderabad)
M/s Vijay Nirman Company Pvt. Ltd. appealed against the Order-in-Original dated 22.12.2020 passed by the Principal Commissioner of Customs, Visakhapatnam, whereby the imported product Aluminium Formwork Materials (AFM) was reclassified from CTH 76109090 to CTH 84806000, resulting in denial of the benefit under Serial No. 610 of Notification No. 152/2009-Cus. dated 31.12.2009.
The appellant, engaged in civil and infrastructure construction, imported AFM from a supplier in the Republic of Korea, classified the goods under CTH 76109090 and claimed nil basic customs duty under the notification. The consignments were initially cleared by Customs. Subsequently, the Directorate of Revenue Intelligence issued a show cause notice alleging that the goods were assembling moulds for moulding concrete, possessing the essential character of moulds, and were therefore classifiable under CTH 84806000 instead of CTH 76109090. The adjudicating authority accepted this view, relying on the purchase contracts, HSN Explanatory Notes, the description of formwork from an open-source website, the customised nature of the goods, and the exclusion of coffering panels having the character of moulds from Heading 7610.
Before the Tribunal, the appellant submitted that the issue stood covered by the Tribunal’s decision in Alcove Construction Pvt. Ltd. Vs CC, Kolkata, where similar Aluminium Formwork Materials had been held classifiable under CTH 76109010. It argued that the imported AFM constituted aluminium formwork used as shuttering and structural support at construction sites, not moulds. The appellant also contended that the Department had relied on the definition of “Formwork” from Wikipedia without obtaining expert opinion, that the demand could not be sustained without first challenging the self-assessment of the Bills of Entry in view of Shri Rajib Saha Vs CC (Prev), Shillong, and that the adjudicating authority had travelled beyond the scope of the show cause notice by denying the notification benefit without specifying which condition of the notification had been violated. The appellant additionally relied on the HSN Explanatory Notes and various judicial precedents on limitation and penalty.
