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TMI Blog2010 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... Held that- exemption under notification no. 21/2002-Cus, available and not to be rejected on the ground that benefit available only if plant in full as specified in list 45 of notification imported. - C/26/2006-Mum and C/735/2008-Mum - A/42-43/2010-WZB/C-II/CSTB - Dated:- 14-1-2010 - S/Shri B.S.V. Murthy, Member (T) and Ashok Jindal, Member (J) Shri S. Suriyanarayanan, Advocate, for the Appellant. Shri K. Lal, DR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - The appellants imported a second-hand POY Plant under six different consignments covered under six Bills of Entry during the period from 7-7-03 to 9-12-03. The Bills of Entry were assessed provisionally, under the condition, that after completi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sony India Ltd. v. CC, New Delhi reported in 2002 (143) E.L.T. 411 (Tri.-LB). In this case, the machinery had to be imported under different consignments. Further, for the purpose of convenience of transportation and packing etc. the same could not have been transported under a single Bill of Entry. On this ground, the proposal of the Department to deny the benefit is not correct. He also relied on the decision of the Tribunal in the case of CC (Import), Mumbai v. Krishna Gears (P) Ltd. reported in 2008 (232) E.L.T. 319 (Tri.) = 2008 (88) RLT 309 (CESTAT-Mum), wherein it was held that Horizontal boring machine imported in three consignments cleared at two different ports are to be treated as second-hand machine and not as parts of used mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 1983 (13) E.L.T. 1456 (S.C.). Further he relies upon the decision of the Tribunal in the case of Ambuja Cement Eastern Ltd. v. Commissioner of Cus.(Air Cargo), Mumbai reported in 2007 (207) E.L.T. 409 (Tri.-Mum.), wherein, it was held that the goods have to be assessed as presented. Further, he also cited the decision of the Hon'ble Supreme Court in the case of Sharp Business Machines Pvt. Ltd. v. Collector reported in 1990 (49) E.L.T. 640 (S.C.). 4. We have considered the submissions made by both the sides. We are not going into too many details in view of the fact that we consider this is a case covered by the decision of the Hon'ble Supreme Court in the case of Sharp Business Machines Pvt. Ltd. The ld. DR distinguished the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the control panel was to be imported as part of DG sets, in that case the question of assessing it separately would not have arisen. As has been observed thereunder, when it is imported as part of generating set, it would have been classified under CTH 8502.13, whereas, when it was imported separately, it was covered separately under Heading 8537.10. Thus, the control panel in that case was classifiable under two headings depending upon how exactly it was imported. In the set of facts, the Tribunal had come to the conclusion that the decision of the Hon'ble Supreme Court in the case of Sharp Business Machines Pvt. Ltd. would not be applicable to the facts of the case. In the case of Sharp Business Machines Pvt. Ltd. the intention was to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is availed correctly, was perfectly in order under the circumstances and, therefore, the review proceedings initiated thereafter culminating into the confirmation of demand for differential duty cannot be upheld. 5. Before parting, we have to observe that there are two appeals in this case. It was pointed out that, initially the Asstt. Commissioner had held that the appellants are not eligible for the benefit of notification and when the party came in appeal, the Tribunal had not granted stay with the observation that there is no quantification of the demand and therefore, there would not be any stay. Subsequently, the Asstt. Commissioner, quantified the demand and that matter is also before us, after passing the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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