Form No.

CA – 1

APPEAL TO THE COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI.

UNDER SECTION 128 OF THE CUSTOMS ACT, 1962.

APPEAL NO. OF 2024.

Eaton Industrial Systems Pvt. Ltd.,

Om Chambers, Office No. 601,
T 29-31, Bhosari Industrial Estate,
Bhosari, Pune,
Maharashtra – 411 026. … … … Appellants

Versus

The Commissioner of Customs,

Airport Special Cargo Commissionerate,
International Courier Terminal, Sahar,
Andheri (East),
Mumbai – 400 099. … … … Respondents

[Arising out of O.I.O. No. AC / SGS / 167 2024-25 Adj dated 30th June 2024
(issued on 2nd July 2024), passed by the Assistant Commissioner of Customs,
Courier Cell, APSC, Mumbai, Customs Zone - III.]

2. Name & address of the Eaton Industrial Systems Pvt. Ltd.,

Applicant. Om Chambers, Office No. 601,
T 29-31, Bhosari Industrial Estate,
Bhosari, Pune,
Maharashtra – 411 026
3. Designation & address of the The Assistant Commissioner of
officer passing the decision or Airport Special Cargo
order appealed against & the Commissionerate,
date of the decision or order. International Courier Terminal,
Sahar,
Andheri (East),
Mumbai – 400 099.
Order Date – 30th June 2024.
4. Date of communication of the 7th July 2024.
decision or order appealed
against to the appellant.
5. Address to which notices may Eaton Industrial Systems Pvt. Ltd.,
be sent to the appellant. Om Chambers, Office No. 601,
T 29-31, Bhosari Industrial Estate,
Bhosari, Pune,
Maharashtra – 411 026.

MAX Legal, Advocates,

Plot No. 11/16-A,
Nirzar Society, Gulawani Maharaj
Road, Erandwane, Kothrud,
Pune - 411 029.
6. Whether Duty or penalty or Rs. 1,03,816-00 have been
both is deposited? If not, deposited vide Challan No. 221045
whether any application for dated 25th August 2023 in
compliance to the provisions of
 dispensing such deposit has Section 129E of the Customs Act,
been made. 1962.

(A copy of Challan is enclosed with

this Appeal)
6A. Whether the appellant wishes Yes.
to be heard in person?
7. Reliefs claimed in appeal. Following Reliefs are claimed
which may be taken as claimed
independently and without
prejudice to one another:

A) Confirmation of demand of
differential duty of Rs.
60,378-00 under Section
28(4) of the Act and levy of
interest under Section 28AA
may please be set aside;

B) Order relating to
confiscation of the goods
imported vide 17 Bills of
Entry may please be set
aside and consequently
Order relating to giving
option to the Appellants to
redeem the confiscated
goods on payment of
Redemption Fine of Rs.
60,378-00 may please be
set aside;

C) Penalty, amounting to Rs.

60,378-00, imposed under
the provisions of Section
114A of the Act may please
be set aside;

D) Penalty, amounting to Rs.

3,11,000-00, imposed
under the provisions of
Section 114AA of the Act
may please be set aside;

E) Appropriation of the amount

of Rs. 1,03,816-00 already
paid by the Appellants may
please be set aside;

F) The impugned Order In

Original dated 30th June
2024, passed by the
Assistant Commissioner of
Customs, Courier Cell,
APSC, Mumbai Customs
Zone III, itself may please
be set aside;
 G) For such further and other
relief as the nature and
circumstances of the case
may require.

8. FACTS OF THE CASE:

8.1 Appellants herein Eaton Industrial Systems Pvt. Ltd. is a Private

Limited Company and is having their Office at Om Chambers, Office

No. 601, T 29-31, Bhosari Industrial Estate, Bhosari, Pune,

Maharashtra – 411 026.

8.2 During 1st September 2018 to 25th March 2021, Appellants imported

certain goods under 17 Bills of Entry claiming concessional rate of duty

under Notification 50/2017-Cus dated 30th June 2017, as amended.

Admittedly, Appellants have claimed exemption under Serial No. 377A

of the Table to Notification No. 50/2017-Cus dated 30th June 2017 in

respect of only ONE Bill of Entry dated 25th March 2021. In all other

Bills of Entry, exemption was claimed under Serial No. 377 of the

Table to the said Notification. Appellants admittedly declared on the

Bills of Entry that the Country of Origin was the United States of

America. Appellants crave leave to refer to and rely upon copies of the

Bills of Entry, when produced. Copy of relevant pages of Notification

No. 50/2017-Cus dated 30th June 2017 are enclosed and marked as

Exhibit “A”.

8.3 A Show Cause Notice dated 2nd August 2023, was issued by the

Assistant Commissioner of Customs, Courier Cell, APSC, Mumbai

Customs, Zone III proposing to deny the exemption claimed by the

Appellants on the ground that the said exemption was not available to

the goods originating in the United States of America. The Notice

demanded differential duty of Rs. 60,378-00 under Section 28(4) of

the Customs Act, 1962 (hereinafter referred to as “the Act”) along with
 Interest under Section 28AA and proposed imposition of Penalty

under Section 112(a), 114A and 114AA of the Act. A copy of Show

Cause Notice dated 2nd August 2023 is enclosed and marked as

Exhibit “B”.

8.4 On 25th August 2023, Appellants deposited Duty amounting to Rs.

60,378-00, Interest amounting to Rs. 34,306-00 and Penalty

amounting to Rs. 9,056-00 (Total Rs. 1,03,742-00) vide Challan No.

221405 and informed the Department. Copy of letter along with

Challan and a Table showing computation is enclosed and marked as

Exhibit “C”.

8.5 On 1st December 2023, Appellants filed Written Submissions.

8.6 By Order In Original No. AC / SGS / 167 2024-25 Adj dated 30th June

2024 (hereinafter referred to as “the impugned Order”), passed by the

Assistant Commissioner of Customs, Courier Cell, APSC, Mumbai,

Customs Zone – III (hereinafter referred to as “the Commissioner”),

demand of differential duty of Rs. 60,378-00 under Section 28(4) of

the Act was confirmed along with Interest under Section 28AA of the

Act. The imported goods were held liable for confiscation and

Appellants have been given an option to redeem the same on payment

of Redemption Fine of Rs. 60,378-00 under Section 125(1) of the Act.

Penalty of Rs. 60,378-00 and Rs. 3,11,000-00 has also been imposed

under Section 114A and 114AA of the Act. Rs. 1,03,742-00 already

paid by the Appellants were appropriated by the impugned Order. A

certified copy of impugned Order dated 30th June 2024 is enclosed

and marked as Exhibit “D”.

8.7 Being aggrieved and dissatisfied by the aforementioned impugned

Order dated 30th June 2024, Appellants are filing the instant Appeal
 on the following grounds which are to be taken independently and

without prejudice to one another.

9. GROUNDS OF APPEAL

9.1 The Commissioner grossly erred on facts as well as on law while

passing the impugned order. The same is passed in violation of the

provisions of the Act and therefore, it cannot be sustained in law and

needs to be set aside.

9.2 The impugned Order and the Show Cause Notice be held to be invalid

as having been issued to one “Eaton Industrial SYS” when the imports

were by “Eaton Industrial Systems Pvt. Ltd.”. This show total non-

application of mind.

9.3 The Commissioner ought to have appreciated that the Show Cause

Notice is bereft of any details and is vague. The Notice does not clearly

specify the classification of goods claimed by the Appellants. It is

submitted that a vague Show Cause Notice cannot be sustained and

has to be quashed at the threshold.

9.4 The Commissioner ought to have appreciated that the restriction of

origin of goods in the United States of America was applicable only to

Serial No. 377A of the Table to the Notification No. 50/2017-Cus dated

30th June 2017, as amended (hereinafter referred to as “the said

Notification”). Text of the proviso is reproduced for ready perusal:

“Provided that nothing contained in the entries against Sr.

Nos. 14, …., 376A, and 377A of the said Table, shall apply to

goods originating in the United States of America:”.

9.5 The Commissioner failed to consider the above statutory provision

and blindly followed the bald allegation in the Show Cause Notice that

the restriction on exemption in terms of the above reproduced proviso

is applicable to Sr. No. 377 as well.

9.6 The Commissioner ought to have appreciated that the above

reproduced proviso was inserted by Notification No. 49/2018 dated

20th June 2018 w.e.f. 4th August 2018 and has remained as it is,

without any further amendment. A copy of Notification No. 49/2018

dated 20th June 2018 is enclosed and marked as Exhibit “E”.

9.7 The Commissioner ought to have appreciated that the Appellants

have imported the goods under claim of exemption under Sr. No. 377A

only in respect of ONE Bill Entry dated 25th March 2021 and in all other

cases import was under Sr. No. 377 of the Table to Notification.

9.8 The Commissioner therefore erred in confirming the demand and

denying the exemption claimed under Sr. No. 377 of the Table to the

said Notification.

9.9 The Commissioner ought to have extended the benefit of reduced

penalty under Section 28(2) of the Act.

TIME BARRED DEMAND

9.10 The Commissioner erred in confirming the demand of duty in the Show

Cause Notice dated 2nd August 2023 for the period from 1st September

2018 to 25th March 2021 in absence of any allegation or averment in

the Show Cause Notice that there was any suppression of facts with

intent to evade payment of duty on the part of the Appellants.

9.11 The Commissioner ought to have appreciated that it is an admitted

position in the Show Cause Notice as well as in the impugned Order

that the Appellants had declared country of exportation as “United

States of America” in the Bills of Entry itself and therefore there is no

suppression of facts whatsoever on the part of the Appellants.

9.12 The Commissioner ought to have appreciated wrong claim for

exemption does not ipso facto lead to an inevitable conclusion that

there was suppression of facts with intent to evade payment of duty.

CONFISCATION OF GOODS

9.13 The Commissioner erred in ordering confiscation of goods in absence

of Show Cause Notice having been issued under Section 124 of the

Act.

9.14 The Commissioner in ordering confiscation of goods when there was

no violation as specified in Section 111(m) of the Act. The

Commissioner ought to have appreciated that there was no mis-

declaration of value or goods in the Bill of Entry and therefore

provisions of Section 111(m) of the Act do not come into play.

Consequently, confiscation of goods under Section 124 of the Act is

not sustainable and the question of imposition of redemption fine does

not arise.

9.15 The Commissioner ought to have appreciated when the goods are not

available for confiscation, there confiscation cannot be ordered nor

can redemption fine be imposed.

 PENALTY UNDER SECTION 114A AND 114AA OF THE ACT

9.16 The Commissioner erred in imposing penalty under Section 114A /

114AA of the Act. Appellants reiterate the grounds taken hereinabove

on the aspect of time barred demand.

9.17 The Commissioner grossly erred in imposing equal penalty, as above,

on the Appellants since the Appellants had not willfully mis-stated and

suppressed any facts from the Department.

9.18 The self-assessment done by the Appellants was never challenged by

the proper officer and the same was accepted by him. Thus, the

Department was fully aware of the self-assessment and its

acceptance thereof. Therefore, there was no element of any wilful mis-

statement or suppression of facts, involved in this matter.

9.19 The Commissioner ought to have appreciated that Penalty under

Section 114A / 114AA of the Act is applicable only in respect of cases

involving suppression of facts, collusion, fraud, willful misstatement

etc. These are absent in the present case for the reasons submitted

above.

9.20 The Commissioner ought to have appreciated that it is a settled law

that mere allegation is not enough and that the onus is on the

Department to prove that there was wilful suppression of facts with an

intention to claim exemption. The Department has not discharged the

said onus. There is no allegation or event which has been brought up

to indicate that there was any malafide intention on part of the

Appellants.
  Cosmic Dye Chemical V. CCE, Bombay (1995 (75) ELT
721 (SC))
 CCE V. Chemphar Drug and Liniments (1989 (40) ELT
276 (SC))
 Tamil Nadu Housing Board V. CCE, Madras (1994 (74)
ELT 9 (SC))
 Continental Foundation Joint Venture V. CCE,
Chandigarh (2007 (216) ELT 177 (SC))

9.21 In view of the submissions made hereinabove, the Commissioner has

grossly erred in imposing equal penalty on the Appellants in terms of

the provisions of Section 114A / 114AA of the Act. The same needs to

be set aside.

9.22 The Commissioner has erred in mechanically reproducing the

contents of Show Cause Notice in the impugned Order which shows

pre-determination of the issue against the Appellants and bias.

9.23 The Commissioner erred in passing the Order blindly without cogent

reasons and without application of mind.

9.24 The submissions made herein above are without prejudice to one

another and are to be taken independently.

9.25 Appellants crave leave to add, alter, amend, delete and / or to

supplement the submissions made hereinabove.

9.26 Appellants request that a hearing may please be granted in the matter.

PRAYER:

In view of the submissions made hereinabove, the Appellants

pray that:

10.1 Confirmation of demand of differential duty of Rs. 60,378-00

under Section 28(4) of the Act and levy of interest under Section

28AA may please be set aside;

10.2 Order relating to confiscation of the goods imported vide 17 Bills

of Entry may please be set aside and consequently Order relating

to giving option to the Appellants to redeem the confiscated

goods on payment of Redemption Fine of Rs. 60,378-00 may

please be set aside;

10.3 Penalty, amounting to Rs. 60,378-00, imposed under the

provisions of Section 114A of the Act may please be set aside;

10.4 Penalty, amounting to Rs. 3,11,000-00, imposed under the

provisions of Section 114AA of the Act may please be set aside;

10.5 The impugned Order In Original dated 30th June 2024 (issued on

2nd July 2024), passed by the Assistant Commissioner of

Customs, Courier Cell, APSC, Mumbai Customs Zone III, itself

may please be set aside;

10.6 For such further and other relief as the nature and circumstances

of the case may require.

Dated this 23rd day of August, 2024.

For Eaton Industrial Systems Pvt. Ltd.

Authorized Signatory
 VERIFICATION

I, Shailokh Paranjape, Plant Finance Controller of Eaton Industrial

Systems Pvt. Ltd., the Appellant herein, do hereby declare that what is stated in the

Appeal Memorandum is true and correct to the best of my information & belief.

Verified today, this 23rd day of August, 2024.

For Eaton Industrial Systems Pvt. Ltd.

Authorized Signatory