Dhiraj Singh Thakur
1. With the consent of learned counsel for the parties, the appeal is taken up for final hearing at the admission stage itself.
2. This is a Custom Appeal under section 130 of the Customs Act, 1962 (hereinafter referred to as ‘the Customs Act’) against the order, dated 25th September 2020 passed by the Customs Excise and Service Tax Appellate Tribunal, Mumbai (‘CESTAT’).
3. The following questions of law have been proposed for our consideration :
(i) Whether in the facts and circumstances of the case, CESTAT was right in setting aside the demand for extended period of limitation, despite holding the case on merits in favour of the Appellant-department?
(ii) Whether the CESTAT, being last fact finding authority, has passed unreasoned and non-speaking order?
4. Briefly stated the material facts are as under :
(i) The respondent-M/s.Signet Chemicals Pvt. Ltd., an importer, had imported the good namely “Neutral Pellets” during the period March 2012 to February 2015, classifying the same under Custom Tariff Heading (‘CTH’) 17029090.
(ii) A show cause notice came to be issued to the respondent, pursuant to an investigation wherein, it was alleged that the classification declared by the respondent against 20 bills of entry, during the relevant period under ‘CTH 17029090’ was incorrect and that the correct classification proposed was ‘CTH 17019990’. A differential duty of Rs.1,44,84,424/- was sought to be recovered under section 28 of the Customs Act with interest, besides a proposed penalty under section 112(a) and 114A of the Customs Act.
(iii) The Commissioner of Customs (Import), Mumbai, on adjudication, confirmed the demand with interest and imposed penalty of an equal amount under section 114A of the Customs Act.
(iv) The order was challenged before the CESTAT. The CESTAT decided two appeals, namely Custom Appeal No. 89829 of 2018 and 85493 of 2019.
The CESTAT, vide its order impugned confirmed that the imported goods in the shape of Neutral Pellets fell under CTH 17019990, and consequently, it proceeded to confirm the demand of duty as also interest for the said period. However, the CESTAT held that the imposition of penalty was uncalled for and unwarranted and set aside the order to that extent. This was in reference to Custom Appeal No. 89829 of 2018.
The present appeal has been preferred against the order of the CESTAT, dated 25th September 2020 questioning only the view expressed in regard to Custom Appeal No.85493 of 2019, which is relevant to the present controversy.
5. The issue in Appeal No. 85493 of 2019 related to the claim of the respondent that the demand in the said appeal was barred by limitation. The CESTAT allowed the appeal filed by the respondent and set aside the demand which had been confirmed in the order impugned before it by invoking the extended period of limitation. What was held by the CESTAT is reproduced hereunder:-
“17. The next question relates to the claim of the appellant that the demand in the case of Appeal No.C/85493/2019 is barred by limitation. The appellant during the period March, 2012 to February, 2015, admittedly from time to time filed Bills of Entry declaring their product under CTH 17029090. They have submitted that the product in question had been physically examined by the department; also the assessing officer on few occasions called for the literature on the composition, process of manufacture etc. to complete the assessment under the declared heading. It is their contention that at no point of time the description of the goods was mis-stated or mis-declared by the appellant or any facts relating to the said product suppressed from the department. They classified the product according to their best understanding and Department was well aware of the said classification, and assessments were completed accordingly. Hence, on a change of view by the department, allegation of mis-declaration or suppression of facts in classifying the product at the times of its import under CTH 17029090 is incorrect and cannot be sustained. The Revenue, on the other hand, argued that in the era of self-assessment, it is burden of the assessee to classify and discharge duty properly, hence, failure of classifying the product under correct sub-heading amounts to mis-declaration. Hence, invoking the extended period of limitation is justified.
18. We do not see substance in the argument of the Revenue inasmuch as the appellant have been continuously declaring classification of the product under Heading 1702 after providing full and description of the goods in their Bills of Entry; duly filed all literatures on process of manufacture, its usage etc. as and when called for by the department during assessing proceedings. In such circumstance, allegation of suppression of facts or mis-declaration solely on the basis that the correct classification which according to the Department would fall under different Tariff Heading i.e. 1701 attracting higher rate of duty during the period under the dispute cannot be sustained. This is the principle of law laid down by the Tribunal and Courts in a series of cases. Consequently, the demand confirmed in the impugned Order invoking extended period relating to Appeal No.C/85493/2029 is set aside on the ground of limitation.”
6. Learned counsel for the appellant urged that the view expressed by the CESTAT was erroneous and perverse in law and was, therefore, not sustainable. It was urged that the goods which were imported by the respondent had been willfully mis-stated and mis-classified for the sole purpose of evading high duty. It was stated that there could not have been any ambiguity entertained by any importer, much less the respondent, who was dealing in the goods since long that the imported goods fell under ‘CTH 1701’ and not ‘CTH 1704’. It was urged that in the regime of self-assessment, the correctness of the information given in the bill of entry has to be certified by an importer, wherein the appellant had willfully filled up incorrect details by mis-declaring the goods to be falling under a wrong tariff head. Learned counsel for the respondent, on the other hand, reiterated the findings of the CESTAT.
7. On going through the order passed by the CESTAT, it can be seen that the basis for the CESTAT holding that the extended period of limitation could not be invoked in the present case was, that there was no suppression of facts or mis-declaration.
8. Section 28 of the Customs Act envisages that where any duty has not been levied or not paid, inter-alia, has been short-levied or short-paid by reasons of (a) collusion; (b) any willful misstatement and, (c) or suppression of facts, by the importer or the exporter, or the agent or employee, the proper officer shall, within five years from the relevant date, to serve notice on the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified in the notice.
9. The Apex Court in Pushpam Pharmaceuticals Company Vs. Collector of Central Excise, Bombay (1995 Supp (3) SCC 462) considered the proviso to section 11-A of the Central Excise Act, 1944, and held :
“………...A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression.”
10. In Collector of Central Excise, Hyderabad Vs. M/s. Chemphar Drugs and Liniments, Hyderabad (1989) 2 SCC 127), the Apex Court held that in order to sustain a demand for duty upto a period of five years, something positive other than mere inaction or failure, is required to be established. It was held:
“9 ……………...Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and these did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation was plausible, and also noted that the Department had full knowledge of the facts about manufacture of all the goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence.”
11. In Cosmic Dye Chemical Vs. Collector of Central Excise, Bombay (1995) 6 SCC 117), it was held:
“6. Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word "wilful" preceding the words "misstatement or suppression of facts" which means with intent to evade duty. The next set of words "contravention of any of the provisions of this Act or rules" are again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful.”
12. The stand of appellant before the Apex Court in the above case was that it was under a bona-fide belief that the goods were fully exempt from duty in a particular notification. Two High Courts had taken a view that the goods were exempt from duty and not includable within the definition of ‘excisable goods’, while two other High Courts had taken a contrary view. The appellant claimed that it was in those circumstances, that the requisite information was not furnished. In the said circumstances, the Court held that in those facts and circumstances, the misstatement of facts in the declaration filed by the appellant, could not be called ‘wilful’.
13. In Collector of Central Excise Vs. H.M.M. Ltd. (1995 Supp (3) SCC 322), the Apex Court held that a bonafide belief as the basis for non-inclusion in the classification list would not lead to a presumption of fraud, collusion or suppression. The Court held:
“2 …….The mere non-declaration of the waste/ by-product in their classification list cannot establish any wilful withholding of vital information for the purpose of evasion of excise duty due on the said product. There could be, counsel contended, bona fide belief on the part of the assessee that the said waste or by-product did not attract excise duty and hence it may not have been included in their classification list. But that per se cannot go to prove that there was the intention to evade payment of duty or that the assessee was guilty of fraud, collusion, misconduct or suppression to attract the proviso to section 11-a(1) of the Act. There is considerable force in this contention…..”
14. The principle laid down in the judgments Supra was followed in Uniworth Textiles Limited Vs. Commissioner of Central Excise, Raipur (2013) 9 SCC 753) which essentially is that with a view to invoke the extended period of limitation, there ought to be a positive act and not merely a failure to pay duty which is not on account of any fraud, collusion or willful misstatement or suppression of facts. The CESTAT, in the present case, has clearly held that the respondent had been importing the goods under CTH 1702, which the learned counsel for the parties agree, attracted the same rate of duty, as the goods importe
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d and falling under CTH 1704 and held that the department was very well aware of the said classification and that in the past, assessments were completed based thereupon. It was, thus, held that only because there was a change of view by the department, the respondent could not have been said to have either mis-declared or suppressed facts in classifying its goods at the time of its import under CTH 1702. 15. We have also noticed from the order of the CESTAT that the respondent had been consistently adopting the classification under heading ‘1702’, even when the rate of duty applicable for goods under heading ‘1701’ were either lower or completely exempt. This fact, it appears, has neither been denied by the appellant before the CESTAT, nor has the appellant made any effort to belie the same before us. 16. To us, it appears that had it been a case of a deliberate and willful attempt on the part of the respondent to suppress the facts or make any willful misstatement for purposes of evading the payment of duty, then it would have in the past, perhaps claimed the benefits by classifying it under CTH 1701, when it attracted a lower rate of duty or was completely exempt. 17. For the reasons mentioned above, we are of the opinion the view expressed by the CESTAT in the order impugned warrants no interference. 18. The appeal is accordingly dismissed. No costs.