Ford India Private Limited Vs Commissioner of Customs (CESTAT Chennai)
At paragraph 41 of the Show Cause Notice, it is inter alia recorded that M/s. Ford India Pvt. Ltd. have been constantly mis-declaring the description; that they have not only mis-declared but also misled the Customs; that the invoice descriptions themselves do not correctly represent the items imported in many cases; that all descriptions available on the invoices per se contradicted each other with reference to the correct description/identity of the item under import; that there is an inherent contradiction/mismatch between what was imported and what was declared to Customs and what is contained in the invoices; that with the above modus operandi the importer had evaded duty; that by this, the appellant has wilfully suppressed as well as mis-stated the actual/complete description of the impugned goods under import, etc., thereby claiming the benefit of concessional rate of duty, to justify the invoking of extended period of limitation in terms of Section 28(1)/28(4) of the Customs Act, 1962, as applicable during the period.
The above observations, according to us, satisfy the requirements of Section 28(1)/28(4) of the Customs Act since it appears that there has been wilful suppression coupled with mis-statement of the very description of goods imported which has misled the Customs authorities for a number of years.
In view of our above findings, we do not see any justifiable reasons to interfere with the findings in the impugned order as to invoking extended period of limitation. But however, we deem it proper and necessary to remit the matter back to the file of the Original Authority to pass a de novo Order-in-Original, giving a logical finding on the allegations raised in the Show Cause Notice after considering the plea of the appellant, on merits. The authority is, however, free to consider all such case laws that are relevant in this regard while passing the de novo order. The appellant is also expected to co-operate with the Revenue as and when it is requested without causing undue delay and may also furnish all such necessary details in this regard to assist the lower authority in reaching a proper conclusion on merits. We further make it clear that we have not expressed our opinion on merits.
FULL TEXT OF THE CESTAT JUDGEMENT
The appellant is engaged in the manufacture and sale of automobiles and in this regard, it imports various parts and components.
2.1 The Show Cause Notice dated 07.04.2014 came to be issued after the CZU-DRI carried an investigation into the modus operandi and goods declared by the appellant as “catalytic converter asy” that were imported vide Bills-of-Entry Nos. 5747715, 5747602 and 5749760, all dated 17.01.2012. The description of the goods imported under the above Bills-of-Entry are “Catalytic Converter Asy”/“Catalytic Converter Asy”/“Catalytic Converter Asy”, “Conv. & Pip AsyExh”, “Conv. & Pip AsyExh”/ “Conv. & Pip AsyExh”, “Conv. & Pip AsyExh”, “Manf& Conv. AsyExh LH”/ “Conv. & Pip AsyExh”, “Manf& Conv. AsyExh LH”, “Manf& Conv. AsyExh LH” in the corresponding commercial invoices.
2.2 The Revenue was of the view that in respect of the goods imported and declared by the appellant vide above three Bills-of-Entry all dated 17.01.2012, the appellant had claimed the benefit of concessional rate of duty in terms of Serial No. 265 of Notification No. 21/2002-Cus. dated 01.03.2002 on which the appellant had paid Basic Customs Duty (BCD) at 5% as against tariff rate of 7.5% BCD; the notified goods at Sl. No. 265 of Notification No. 21/2002 being just „catalytic converter‟ and that the imported goods covered under three Bills-of-Entry above being found to be of different varieties which was in an assembled form, i.e., containing :
(i) Catalytic converter with inlet and outlet mechanisms welded together;
(ii) Catalytic converter with an inlet mechanism and an outlet mechanism containing a flexible exhaust pipe assembly welded together;
(iii) Catalytic converter, manifold and outlet assembly welded together; and
(iv) Catalytic converter, manifold and flexible exhaust pipe assembly welded together,
sought to deny the benefit of concessional rate of duty as claimed by the appellant. Accordingly, the said Show Cause Notice also carried the Revenue’s proposal to correctly classify the imported goods under tariff item 8421 3990 inter alia demanding differential duty along with applicable penalty.
3. The appellant filed a very detailed reply inter alia justifying its classification and its claim of benefit of concessional rate of duty in terms of Notification No. 21/2002 (supra), but the Adjudicating Authority namely, the Principal Commissioner of Customs, Chennai-VII Commissionerate, vide impugned Order-in-Original No. 380/2015-AIR dated 31.03.2015, however, proceeded to confirm the proposed classification under CTH 8421 3990 apart from demanding differential duty, interest under Section 28(2)/28(8) of the Customs Act, 1962 read with Section 28AA/28AB of the Customs Act, 1962 – twice – one in respect of Bill-of-Entry pertaining to Sea Commissionerate, Chennai, and another in respect of Bill-of-Entry pertaining to Air Commissionerate, Chennai, and penalty under Section 114AA ibid, apart from ordering confiscation of the impugned imported goods. Aggrieved by the above, the assessee has preferred the present appeals before this forum.
4.1 When the matter was taken up for hearing, Shri. P. Sridharan, Learned Advocate appearing for the assessee-appellant, submitted at the outset that the only issue which is involved in the present appeals is whether the appellant is eligible for the concessional rate of BCD at 5% in respect of the import of „catalytic converter assembly’ which is attached with an inlet and an outlet pipe.
4.2 The contentions of the Learned Advocate are inter alia summarized as below :
