Customs, Excise and Service Tax Appellate Tribunal

Priyanka Enterprises vs. Commissioner of Customs

MANU/CC/0022/2024

25.01.2024

Customs

Charge of suppression could not have been brought against an importer, if he has correctly described the goods in the Bill of Entry

The importer, had filed a Bill of Entry No. 3450978 dated 3rd October, 2017 for the clearance of the goods declared as 'GSL Artemia Brine Shrimp Foods' by classifying them under CTH 05119911 and sought to avail the preferential rate of IGST under Sl. No. 33 of the Notification No. 002/2017-Cus dated 28th June, 2017.

The department felt that, the goods were eligible for the benefit of IGST Notification No. 001/2017 under Sl. No. 21 of Schedule I which attracts IGST @5% and not under Notification No. 002/2017-Cus. The learned Joint Commissioner in his order confirmed IGST @ 5% as per IGST Notification No. 001/2017 and also held that the importer had cleared the same goods previously under Bill of Entry No. 2311679 dated 4th July, 2017 without payment of 5% IGST and demand differential duty of Rs. 31,70,083 on the same. The goods were not confiscated as they were not available for confiscation. The goods imported vide Bill of Entry No. 3450978 was confiscated under Section 111(m) with an option to redeem the goods on payment of Redemption Fine of Rs. 60,00,000. A penalty of Rs.6,55,000 was also imposed on the importer. Pursuant to the same, the importer has filed the appeal before the Commissioner of Customs (Appeals), who vide the impugned order rejected the appeal.

A penalty can be imposed and goods confiscated only if there is a breach of any specific provisions of the Act or law framed there under. What is made punishable under the Customs Act is the 'blameworthy' conduct of the importer. A mere claim of exemption by the importer cannot be visited by confiscation of goods along with fine and penalty. Further, charge of suppression could not have been brought against an importer, if he has correctly described the goods in the Bill of Entry as held by the Apex Court in Northern Plastic Ltd Vs. Collector of Customs and Central Excise.

Since the description of goods and classification done by the importer has been found correct and accepted by the department, the confiscation of the goods and imposition of fine was improper and merits to be set aside. In the case of Bill of Entry No. 3450978 dated 3.10.2017, Revenue has erred in reopening a finally assessed Bill of Entry without even giving the importer the grounds on which action is sought to be taken through the issue of a Show Cause Notice. The fundamental purpose behind the serving of a show cause notice is to make the noticee understand the precise case set up against him, which he has to meet. Without meeting this fundamental requirement, the order cannot sustain as it is in violation of principles of natural justice and the demand of differential duty in this regard also merits to be set aside. The question of confiscation of the goods hence does not arise. Having found that the importer-appellant has not violated any provisions of the Act or rules, present Tribunal also set aside the penalty imposed upon them.

Present Tribunal do not disturb the classification of 'GSL Artemia Brine Shrimp Eggs' under CTH 05119911 along with duty as finalized with respect to Bill of Entry No. 3450978 dated 3rd October, 2017. However, the confiscation of the goods and the fine imposed on the goods imported by the said Bill of Entry is set aside. Present Tribunal also set aside the differential duty demand in respect of Bill of Entry No. 2311679 dated 4th July, 2017. Since, no violation of law has been established the penalty imposed on importer is quashed. Appeals are disposed of.

Tags : Penalty Imposition Legality

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