Commissioner of Customs v. Laxmi Narain Agarwal

2. Cus.A.A. No. 6/2009 & CM No.10646 12009, CM No.10 64712009 Commissioner of Customs throush: Mr. Mukesh Anand, il;*Xl;tt*'

VERSUS

3. Cus.A.C. No. 7/2009 & CM No. 10648 12009, CM No.l0 649/2009 Commissionerof Customs...Appellant through: Mr. Mukesh Anand, Advocate.

VERSUS

JUSTICE A.K. SIKRI THE HON'BLE MR.

JUSTICE VALMIKI J. MEHTA

1. Whether Reporters of Local newspapers may be allowed 2009:DHC:8680-DB - A.K. SIKRT, J. (ORAL) The respondents, who.are the holders of DFRC license had, according to them, imported 'glazing glass'. In the bill of entry the description of the glass was given as "pyrolitic blue float glass (glazing glass)". The customs authorities checked and examined these goods and cleared the same as per the aforesaid description provided by the respondents treating it to be that'glazing glass'. At the backside of the bill of entry, endorsement was given by the Customs Officers about the examination of the goods and finding the same to be 'green reflected float glass'. However, later on a show cause notice was given and proceedings started against the respondents on the ground that the appellants had mis-described the material and in fact it was 'float glass'. This notice was admittedly given beyond the period of six months frorn the date of clearing of the goods. In these circumstances, the respondents objected to the aforesaid proceedings on the ground that the action was time barred as per the provision's of Section 28 of the Customs Act which mandates that such a step can be initiated only within six months. The adjudicating authority did not accept the aforesaid submission of the respondents and imposed the duty and penalty. However, in appeals to the Customs and Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi, the respondents have succeeded inasmuch as vide impugned orders dated 27.8.2008 passed in all those three cases, the Tribunal has held that action initiated by the adjudicating authority is barred by limitation. Before we delve. into the challenge laid by the Revenue to the aforesaid, ?

' from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so shortlevied or part paid or to whom the refund has eroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been eroneously refunded by reasons of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this subsection shall have effect as if for the words "one year" and "six months", the words "five vears" were substituted." We may note here that though Section 28 of the Act stipulates prescribes six months period of limitation from the relevant date, the proviso thereto prescribes that the period in which the action can be taken would be five years in case duty has not been levied or has been short levied or the interest has not been charged or has been partly paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter. The moot question is as to whether the cases of the respondents fall in the main provision or it is covered by the proviso. In these appeals preferred by the Revenue the aforesaid order of the CESTAT is challenged on the ground that the description of the goods given by the respondents would cover the same by the aforesaid proviso and, therefore, the period of five years was available to take \ \ We are unable to accept this submission of the learned counsel for the \ appellant in the facts and circumstances of this case. As pointed out above the respondents had given complete description of the goods by mentioning (( Pyrollitic blue float glass (Glazing glass)". Eyen the Customs officers examined the goods and found the same to be green reflective float glass. It is not a case where the incomplete description of goods was given. It is not a case of misdeclaration or concealment of the description either. No doubt the respondents had given the classification of the goods under CPH 7020 whereas as per the appellant the goods were classifiable in CPH 7005. There is more than one reason to reject the plea of the appellants. First of all, all these contention proceeds on the basis that glazing glass is classifiable under CPH 7020 whereas floating glass is classifiable under CPH