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2019 (9) TMI 1112 - AT - CustomsClassification of imported goods - 48F Optical Fibre Cable - whether classified under CTH 85447090 or under CTH 90011000 - benefit under N/N. 24/2006-Cus dated 01.03.2005 - HELD THAT - The issue of classification of Optical Fiber Cables has been settled by the larger bench of Tribunal in case of Vodafone Essar Gujarat 2018 (1) TMI 959 - CESTAT MUMBAI (LB) under Chapter 90. Applicability of Section 28(2B) of CA - appropriation of the amount said to be deposited voluntarily by the respondents - HELD THAT - In the proceedings initiated by the revenue, demanding the duty by invoking extended period as per the proviso to Section 28(1) of the Customs Act, 1962 revenue cannot seek the benefit of sub section (2B) for the reason it fails to establish its case under the said proviso. Once the show cause notice has been issued in respect of any amount whether deposited or not deposited, by invoking extended period as per the proviso to Section 28(1), the adjudicating authority is bound to determine the issue as per the notice issued. Thus by issuing the show cause notice, Revenue has itself opted not to settle the issue in terms of sub-section 2B of Section 28 of Customs Act, 1962. Having done so they cannot go back subsequently on failing in adjudication proceedings to ask for settlement and appropriation of the amounts paid in terms of this section. Appeal dismissed - decided against Revenue.
Issues:
Classification of imported goods under CTH 90011000, applicability of Notification No 24/2005-Cus, confirmation of demand under Section 28(2) of CA 62, interest payment under Section 28AB of CA 62, confiscation of goods, penalty imposition, applicability of Section 28(2B) for appropriation of voluntarily deposited amount, time limit for demand confirmation, authority of DRI to collect duty during investigation. Classification Issue: The case involved the classification of imported goods, specifically "48F Optical Fibre Cable," under CTH 85447090 with the benefit of Notification No 24/2006-Cus. The investigation revealed the correct classification under heading No 90011000, requiring payment of basic Customs duty at 10% under Notification No 21/2002-Cus. The Commissioner upheld the classification under CTH 90011000, denying the benefit of the notification, and confirmed a demand of &8377; 14,99,939 under Section 28(2) of CA 62. Show Cause Notice and Adjudication: A show cause notice was issued by Additional Director General DRI Mumbai, raising various issues related to classification, confiscation, demand confirmation, interest recovery, and penalty imposition. The Commissioner adjudicated the notice, leading to the appeal by the revenue and cross objections by the respondents. Applicability of Section 28(2B): The appeal raised the issue of the applicability of Section 28(2B) for the appropriation of voluntarily deposited amounts. The Tribunal cited relevant legal provisions and judicial decisions, emphasizing that once a show cause notice has been issued invoking the extended period, the adjudicating authority must determine the issue as per the notice. The law prohibits the revenue from seeking the benefit of Section 28(2B) if it fails to establish its case under the proviso to Section 28(1). Judicial Precedents and Interpretations: The Tribunal referred to legal interpretations and judgments, including a decision by the Hon'ble Karnataka High Court in the case of Powerica Ltd, to support its conclusion on the applicability of Section 28(2B). The Tribunal highlighted that the revenue's decision to issue a show cause notice precluded it from later seeking settlement and appropriation of amounts paid voluntarily by the importer. Decision and Disposition: After thorough analysis and discussions, the Tribunal dismissed the revenue's appeal, finding no merit in it. The cross objections filed by the respondents were upheld, affirming the impugned order of the Commissioner. The Tribunal's decision was pronounced in open court on 24.09.2019, resolving the issues raised in the appeal and cross objections comprehensively.
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