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2014 (12) TMI 116 - AT - CustomsImport of goods for manufacture of specified goods - Denial of concessional rate of duty under exemption Notification No. 25/99-Customs, dated 28-2-1999 (S. Nos. 17 & 54 of Part A of the Notification) - Revenue contends that raw materials were not eligible for exemption under the said S. No. (17 and 54) of the Notification as the said S. Nos. covered the finished goods Ferrites and not Soft Ferrites or Ferrite powder whereas these final products were, instead, properly covered under S. No. 148 of the same exemption notification - Held that - for recovery of the differential duty of Customs for the goods imported under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996, it is the Deputy/Assistant Commissioner having jurisdiction over the factory of production, with whom the importer assessee had filed bond for the purpose, is the proper officer for such recovery and that the recovery proceedings are to be in terms of Section 28 of the Customs Act, 1962. - demands have been confirmed by the original Adjudication Authority under Section 11A of the Central Excise Act. Hence we hold that the ratio of the Tribunal decision in the case of Molex India Ltd. 2010 (12) TMI 1046 - CESTAT, BANGALORE as referred by the Ld. Counsel squarely applies. We hold that demand raised and confirmed under Section 11A of the Central Excise Act instead of Section 28 of the Customs Act, 1962 are not valid being not issued under proper provisions of law. - Decided in favor of assessee. Extended period of limitation - Held that - Exemption from Customs duty for import of inputs for their use in Ferrite under Notification No. 25/99-Cus. was availed only after due approval from the jurisdictional authorities. Importation at concessional rate was allowed under notification No. 25/99-Cus. only after jurisdictional authorities issued CT3 certificate. Such certificates were issued after checking availability of concession as specified in the notification along with other conditions. Invocation of extended period of limitation has been alleged in the Show Cause Notices on the grounds that assessee did not disclose full facts to CT3 issuing authority. It is observed that it was for concerned authorities to check the veracity of the declaration. Normally such permissions are granted only after due verifications by the jurisdictional authorities. Once importation was allowed with proper authorization by the competent authority, to invoke extended time of limitation is not permissible. Thus on this account, we find force in the contention of counsel that demands are time barred as invocation of extended period was not justified. - Decided in favor of assessee. Demand for subsequent period where SCN has been issued under the provisions of Customs - Held that - For the period after amendment to the notification vide amending Notifications No. 26/2002 w.e.f. 1-3-2002 and specifically vide No. 9/2004-Cus., dated 8-1-2004 in the impugned notification, Ferrites are to be held as distinct and different from the Soft (Pre Calcined) Ferrite Powder and Parts. - Demand for differential duty of customs for the normal period of limitation for Appeal No. E/334/2008 is recoverable from the assessee. As no such computation is available in records, we propose to remit the matter back to the original adjudicating authority to re-quantify the demand. It is ordered accordingly. Assessee is also directed to submit necessary records before adjudication authority within three months of the order for such quantification. However, as we have already held that there is no suppression mis-statement or mala fide on the part of the appellant, we set aside the penalty imposed in the present appeal. - Decided partly in favour of assessee.
Issues Involved:
1. Jurisdiction 2. Limitation 3. Merits of the case Detailed Analysis: Jurisdiction: The appellant argued that the Assistant Commissioner of Central Excise, Shimla, lacked jurisdiction to issue the Show Cause Notice (SCN) because the Bills of Entry were assessed by the Assistant Commissioner of Customs, Bombay. They relied on the Tribunal decision in Molex India Ltd. v. CC, Bangalore, which held that recovery under Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996, by the Deputy/Assistant Commissioner of Central Excise was without jurisdiction. The Tribunal, however, noted that the duty of Customs was being recovered under Section 11A of the Central Excise Act or Section 28 of the Customs Act, and not under Rule 8. The Tribunal cited the Samtel Color Ltd. and Ferro Alloys Corpn. Ltd. cases, which held that the jurisdiction for recovery of differential duty of Customs lies with the Deputy/Assistant Commissioner having jurisdiction over the factory of production. The Tribunal concluded that the recovery proceedings should be in terms of Section 28 of the Customs Act, 1962, and that the Deputy/Assistant Commissioner of Central Excise, Shimla, had proper jurisdiction. Limitation: The appellant contended that the demand was time-barred as the exemption was availed with due approval from the jurisdictional authorities, and there was no suppression of facts. The Tribunal agreed, noting that the exemption was availed only after due approval from the jurisdictional authorities, and the importation at concessional rates was allowed under Notification No. 25/99-Cus. only after the issuance of CT3 certificates by the jurisdictional authorities. The Tribunal found that the invocation of the extended period of limitation was not justified as the jurisdictional authorities had verified the declarations before issuing the certificates. Consequently, the Tribunal held that the demands were time-barred, allowing the assessee's appeal (No. E/3648/2006) and rejecting the Revenue's appeal (No. E/2758/2007) on grounds of limitation and jurisdiction. Merits: Regarding the merits, the Tribunal examined whether the term 'Ferrites' under Notification No. 25/99-Cus. included Soft Ferrite Parts/Powder. The Tribunal observed that until 1-3-2002, the notification mentioned only 'Ferrites' under S. No. 17 and 54, with no separate reference to Soft Calcined Parts or Pre Calcined Powder. However, subsequent amendments (Notification No. 26/2002-C.E. and Notification No. 9/2004-C.E.) introduced specific entries for Pre Calcined Ferrite Powder and Soft Ferrite Parts. The Tribunal concluded that after the amendments, 'Ferrites' did not include Pre Calcined Ferrite Powder or Soft Ferrite Parts. The Tribunal also noted that the assessee had declared Soft Ferrite Parts under sub-heading 8529 and Pre Calcined Ferrite Powder under sub-heading 3824.90, indicating a distinction between these products and Ferrites. The Tribunal upheld the Revenue's appeal (No. E/334/2008) for the normal period of limitation, remitting the matter back to the original adjudicating authority for re-quantification of the demand. The penalty imposed was set aside as there was no suppression, misstatement, or mala fide on the part of the appellant. Conclusion: - Appeal No. E/3648/2006: Allowed on grounds of limitation and jurisdiction. - Appeal No. E/2758/2007: Rejected on grounds of limitation and jurisdiction. - Appeal No. E/334/2008: Partially upheld for the normal period of limitation, remitted for re-quantification, penalty set aside.
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