Tuesday, August 06, 2013

Misclassification of goods and misdeclaration of goods are distinct in nature and scope

It is settled law that misclassification of goods and misdeclaration of goods are distinct in nature and scope. Misdeclaration  of goods   attract penal  provision under section 111(m) of Customs Act ,1962.But misclassification  of goods is a subject of interpretation  and  does not attract penal provision under Section 111(m).

   Relying on following case laws for above submission.

i)                    The Honourbale High Court  of Karnataka held, in case of  COMMISSIONER OF CUSTOMS, BANGALORE Versus  A. MAHESH RAJ - 2006 (195) E.L.T. 261 that In case of misclassification, it may be bona fide case of wrong classification as the importer or the person clearing the goods may not be fully conversant with the Schedule to the Act.

The relevant portion of  Para  20  of above cited  case law has been reproduced below as:

“. The scope of the provisions cannot be unduly enlarged if the intendment of the Legislature to provide for settlement in cases of short levy or non-levy on account of misclassification or misdeclaration also, as there is a vast and considerable distinction between cases of misclassification of goods and misdeclaration of goods. A misclassification of goods will only result in duty liability being at a different rate in terms of entry under which it is classified, whereas misdeclaration can be a situation of suppression, distortion and misrepresentation. In a situation of misclassification, only goods are disclosed or declared but goods are not properly classified for the purposes of determination of rate of duty, whereas in a case of misdeclaration, goods might not have been declared correctly at all, in the sense description is not of the actual goods also quantity may varying and mischief being deliberate and designed to avoid payment of customs duty. In case of misclassification, it may be bona fide case of wrong classification as the importer or the person clearing the goods may not be fully conversant with the Schedule to the Act. In the case where there was no deliberate or  intended desire on the part of the importer to evade or avoid payment of any customs duty, in tact, to provide immunity and protection of such class of people ,Chapter XIVA has been ushered in ……….”.

Ii) Misdeclaration can be of description but not of classification – Bajaj Health & Nutrition  Pvt Ltd V. Commissioner ,2004(166) ELT 189 (Tri)

Iii)    Mens rea not attributable – if importer have claimed wrong classification according to his limited Understanding  of the Customs Law- Jay Kay Exports & Industries V. Commissioner -2004(163) E.L.T. 359 (Tri-Kolkata)


Iv ) Demand on account of wrong classification –confiscation not resortable when description of goods given correctly- Hindustan National Glass &Indus limited V.Commissioner , Calcutta-2002(145) E.L.T.162(Tri-Kol)


v) The Honourable High Court of Bombay  ,in  case of Commissioner Of Central Excise Mumbai-V   Vs Guru Plastics Work, 2010 (261) E.L.T. 60 (Bom.),uphold the view of learned  Tribunal  that in the issue of classification  ,imposition of penalty was not called for.   The Para 2 and 3 of this order is reproduced here:

”2. From the facts and record, we find that the learned Tribunal had recorded the finding that the issue of classification in the case was an issue and in these circumstances, the imposition of penalty was not called for. The matter was thereafter remitted back to the Commissioner to re-determine the valuation as per the formulae in the case of M/s. Ujagar Prints v. Union of India - 1989 (39) E.L.T. 493 (S.C.).

3. It is this order which was the subject matter of the appeal before us. The law insofar as Section 11AC has been settled in the judgment of the Supreme Court in Dharamendra Textiles, 2008 (231) E.L.T. 3 (S.C.) and explained in Rajasthan Spinning & Weaving Mills Ltd., 2009 (238) E.L.T. 3 (S.C.) has laid down that Revenue has to prove the predicates of Section 11AC, one of which is that the non-payment of duty was with an intent to evade payment of duty. In the instant case, there is a clear finding of fact that there was a vexed issue of classification.”

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