DR. RACHNA GUPTA

The present order disposes of two appeals filed by the department assailing the Order-in-Appeal (O-I-A) No. 866-867 of 2022-23 dated 25.07.2022.

2. Vide the said order (O-I-A), Commissioner (Appeals) of Customs has allowed both the appeals filed by M/s Siria Impex Private Limited¹the Respondent setting aside the respective orders-in-original i.e. Order-in-Original No. 27/2022 dated 14.01.2022 in Appeal No. 50006 of 2023 and Order-in-Original No. 28/2022 dated 18.01.2022 in Appeal No. 50007 of 2023. Details of both the appeals are:-

3. The facts, in brief, for the present adjudication are as follows:-

That the appellant had filed several Bills of Entry for import of “Molybdenum Mirror and Shields” declaring the classification under CTH 81029590 attracting Basic Customs Duty²BCD @ 5%. However, during the course of the audit of those Bills of Entry got classified under CTH 81029900 attracting BCD @ 10%. Vide the audit report dated 22.02.2021, the Audit team observed the mis-declaration of imported goods has resulted into short levy of duty amounting to Rs. 16,78,288/-. The appellant was called upon to explain the same vide letter dated 14.08.2020 and 13.11.2020. The appellant disagreed with those objections vide their letter dated 23.08.2020 on the various grounds mentioned in the said letter. Being un-satisfied of that reply, the department served the show cause notice³SCN upon the appellant as tabulated above proposing the recovery of the short paid as customs duty of such amount as mentioned in the table above in terms of Section 28 (1) of Customs Act, 1962⁴the Customs Act along with interest at the appropriate rate and the proportionate penalties under Section 112(a) of the Customs Act. The goods in question were proposed to be confiscated in terms of provisions of Section 111 (m) of Customs Act, 1962. The said proposal was confirmed by the original adjudicating authority vide the afore tabulated two order-in-originals. The appeals of the importer against both the said OIOs have been as filed in pursuant to the Review Order No. 17/2022 dated 02.11.2022 in terms of sub-section 1 of Section 129A/Sub-section 4 of Section 129 D of the Customs Act praying for setting aside the said order-in-appeal dated 25.08.2022. Commissioner (Appeals) has allowed the appeals. Being aggrieved the department is before this Tribunal.

3. We have heard Shri Girijesh Kumar, learned Authorized Representative appearing for the Department and Shri B. L. Garg, learned Counsel for the Department and also perused the entire records of the appeals.

4. Learned Authorized Representative for the Department-appellant has submitted that the original adjudicating authorities had rightly held that the impugned goods i.e. Molybdenum Mirrors/Shields are classifiable under CTH 81029900 for the reason that CTH 81029590, as declared by the appellant covers only flats surfaced products of solid rectangular cross section such as plates/sheets/strip/foils. It was held that since the imported items were curved and presented as finished articles like mirrors or shields, they no longer remained flat sheets but the ‘articles of molybdenum’. Hence, the classification of the goods under CTH 81029590 as claimed by the importer-respondents was rightly denied by the adjudicating authority, and rightly had re-determined under CTH 81029900.

4.1 Learned DR further pointed out that the same importer, for the past imports had classified identical goods under CTH 81029900 (as claimed by the department) which indicated that the importer wa