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TMI Blog2005 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ended period for demanding differential duty on the imports made from 1-4-99 onwards. The adjudicating authority in the impugned order demanded differential duty of Rs. 14,78,929/- by classifying the items imported under Heading 90.31. Further the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 and its predecessor notifications was denied. Differential duty of Rs. 98,81,360/- was demanded for the imports made from 1-4-99 to 19-3-2003. A penalty of Rs. 25,00,000/- under Section 112(a) of the Customs Act, 1962 was demanded. The goods valued at Rs. 13,00,285/- and Rs. 1,44,51,574/- have been confiscated without giving any option for redemption. Bank Guarantee of Rs. 10,00,000/- furnished for provisional release has been en-cashed towards the adjudication levies. The appellants strongly challenged the findings of the adjudicating authority. 3. Shri K. Parameswaran, learned Advocate appeared on behalf of the appellants and Shri R. N. Viswanath, learned SDR appeared for the Revenue. 4. The learned Advocate made the following statements :- (i) The whole classification issue has been decided in an arbitrary and misconceived manner to somehow classify without any basis or ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment Institutions. In respect of opinion given by BEL, in the cross-examination, one Mr. Bhujanga Rao of commercial department appeared and he agreed that the opinion had been signed on the request of the department and that the same has been derived from technical people and further is dealing with commercial matters and cannot give any technical clarifications and hence the same should have been rejected outright. It was also explained how there was contradiction in the opinion given and also from where the details were picked out was not clarified and did not take into account the nature and function of the product and hence should have been rejected outright as it did not stand the test of cross-examination. Even the opinion given by one Shri Ravindra Bharadwaj of American Power Conversion should not have been relied upon since the factual position was clearly brought out in the cross-examination particularly while answering the questions and his understanding is based on his assumption that all non-contact devices should be categorized as sensors and not switches and further it is also admitted by him that the product seen by him generates a signal for control circuitry to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to counter the same. This will become all the more relevant for denying the benefit of exemption of the said Notification No. 21/2002-Cus. therein. (vii) HSN Explanatory Note relevant for Heading 85.36 as relied upon in Para 17 of the show cause notice itself has been clearly ignored in toto and further even the Explanatory Note relating to chapter 90.32 which provides for classification of starting, stopping or operating devices have all been ignored in toto. On the contrary, erroneous reliance is placed on HSN Explanatory Notes relevant for Heading 90.31 merely because it uses the words sensors therein without giving the full picture therein and hence the findings recorded in this regard in Paragraphs 155 to 159 would deserve to be rejected in toto as grossly misconceived and arbitrary. Similarly even the reliance placed on the case laws as recorded in the said Para 156 is also totally erroneous and will not be relevant to the matter involved herein. (viii) In any case, there is no dispute that the products imported had contact rating less than 5 amps at a voltage not exceeding 250 Volts AC DC and the plus or minus tolerance given has been read out of context thereto. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidences produced of assessed bill of entries which have been ignored and brushed aside in toto. This itself would be sufficient to establish that the extended period cannot be invoked at all for any reason whatsoever and hence for this ground alone the major portion of the demand would deserve to be dropped on limitation/time bar and it is accordingly prayed by the appellant herein : 5. The learned SDR reiterated the points in the Order-in-Original. 6. We have gone through the records of the case carefully. The adjudicating authority has given a very detailed finding with regard to the function of the proximity sensor imported by the appellants. The function of the proximity sensor is to detect the presence of the metal object and change the output status of sensor which is used in the control sequence of the machine to which it is to be connected. The function is that it gives a signal to the machine so that the machine can be activated or de-activated or a sequence of operations is carried out. The proximity switches are non-contact switches. The heading 85.36 of the Indian Customs Tariff reads as follows :- Electrical apparatus for switching or protecting electrical c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation, the difference is brought out as under :- Proximity switches are self contained devices that combine the sensing element with the signal conditioning electronics. Proximity sensors only include the sensing element and require remotely located electronics to function. As regards the benefit of exemption Notification No. 21/2002-Cus., dated 1-3-2002, the relevant entry is as follows :- List 26 (See S. No. 244 of the Table) states that :- (3) Switches with contact rating less than 5 amperes at voltage not exceeding 250 Volts AC or DC. This available records indicate that the impugned goods are not meant for a rating of more than 5 Amperes at voltage exceeding 250 Volts AC or DC. Moreover similar goods have been imported earlier and were cleared after classifying under Heading 85.36 of the Customs Tariff. There is nothing to show that there has been any wilful misdeclaration and suppression of facts. Hence the longer period cannot be invoked. Even though prior to 1-3-94, the goods were classified under Heading 90.31, the appellants later corrected the classification to Heading 85.36 and the Department did not raise any objection. Hence the extended period c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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