9911796707
TMI Blog2006 (2) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned SDR, despite having addressed a letter calling upon the Commissioner to file their reply by 15-2-2006, he has not received the same. He submits that in such a circumstance, he is not in a position to respond to the misc. order. 3. The learned Counsel again argued the matter and files detailed written submission. It is his submission that the allegation in the Show Cause Notice is misdeclaration of the spares of Mobile Image Intensifiers and X-Ray machines. The main allegation is that during manufacturing the said Mobile Image Intensifiers and X-Ray machines, certain interior products come into existence which are dutiable and hence duty has been raised on the intermediary parts. The main submissions made by the appellants in the matter in the written submission is extracted herein below :- 1. The Issues involved in the present Appeal are i. Whether the Appellants made a Declaration under Rule 173B from 1998 onwards in respect of Mobile Image Intensifiers (Mlls) consisting of S - Cat items, viz., Mobile Base Stenoscope, Monitor Cart, Image Intensifier-16 CM/22 CM, DR-4, MD 10, MDA, Memory, Monitor 20 , Collimeter, Diaphragms, hand switches, cassette hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X-ray Tube and Housing Imager Intensifier TV Camera TV Monitor Thermal Printer VCR Visiplex, etc., c. C-Arm System is configured based on the particular requirement of a Hospital/Radiologist/Diagnostic Center/ Nursing Home, etc. Various sub-assemblies/components of C-Arm are identified and can be chosen by the said customers considering their requirement. All these identified items, mentioned at (b) above, such as Image Intensifier, X-ray control, Mobile Stand, Tube head, Thermal Printer, Memory MDA, TV Monitor, etc., are mentioned in the Sale Catalogue of C-Arm. These items are referred to as S-Cat items with an identified number. The customers place an order with the Appellants deciding various items by referring to the sales catalogue. Thus the configuration of a C-arm, is decided by the customers, depending upon their requirements. In other words, a C-Arm is manufactured and cleared only after receipt of a specific order and not off the shelf. All these items are imported except the Base Assemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly shows that the S-Cat items were in fact imported and were not manufactured in their factory. This order shows that the Dept. itself was of the opinion that the parts (S-Cat items) have not undergone any process of manufacture [Pg. No. 536; Vol.11]. Under the circumstances, it is not correct to allege that they have not declared the above items in 173B Declarations and failed to determine and discharge the duty on the said goods, inasmuch as the said goods are imported/procured locally and not manufactured by them. They are assembled into Mobile Image Intensifiers and exported. Therefore, the charge of suppression of facts is thus is not maintainable and the extended period of limitation cannot be invoked. The demand for duty is therefore barred by limitation. In this connection, the Appellants would like to refer to and rely upon the following decisions : Pushpam Pharmaceuticals Co. v. CCE, Bombay - 1995 (78) E.L.T. 401 (S.C.) Tamil Nadu Housing Board v. CCE, Madras - 1994 (74) E.L.T. 9 (S.C.) Lubri-Chem Industries Ltd. v. CCE, Bombay - 1997 (73) E.L.T. 257 (S.C.) CCE, Kanpur v. U.P. Lamination - 1997 (89) E.L.T. 440 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices, AR 4s etc., relating to 1998-99 and 1999-2000 under the cover of which they exported MII s [Pg. Nos. 487- 530A and 595 - 627; Vol. II]. A perusal of these documents would show that MII s were exported in two packages consisting of C-Arm Buggy (Base System) and Monitor Trolley. These shipments were supervised by the Inspector/Supdt. of Customs, who countersigned the said documents. The Appellants would also like to refer to the letter dtd. 6-4-1999/7-4-1999 from the Asst. Commissioner of Customs, Sahar Air Cargo Complex, Mumbai, addressed to the Asst. Commissioner of Central Excise, Pune, granting permission for examination and stuffing of Export Cargo at the factory premises. He also indicated in the said letter a model Examination Order , which is required to be recorded on the duty free Shipping Bill by the Jurisdictional Central Excise Officer [Pg. No. 519; Vol. II]. In pursuance of the said letter dtd. 6-4-1999/7-4-1999, the Departmental Officers were supervising such shipments. In the light of the above facts, the Appellants submit that no duty is demandable on the S-Cat Items, originally imported free of duty and utilized in the manufacture of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 9022. In this connection the Appellants would like to refer to and rely upon the Explanatory Notes given in the HSN for Chapter 90.22, which amongst other things clearly states that This Group includes : (A) (B) (C) (D) (E) (F) Examination or treatment tables, chairs and the like specialized for x-ray work whether designed to be incorporated in the x-ray apparatus or to form separate articles. Provided they are exclusively or primarily designed for use with x-ray apparatus, such tables, chairs, etc., remain classified in this heading even if presented separately; but tables, chairs, etc., not specialized for x-ray work are excluded (usually Heading 94.02) [90.22 (lll)(F)]. 5. Without prejudice to the above, the Appellants would like to submit that some of the spares/components, such as, screws, bolts, nuts, pipes, base plates, strips, revealex, lead glass, push buttons, table tops, etc. were procured locally from SSI Units. These items were cleared to the Appellant s Customers as spares/components and duty at 5% and 8% was paid as spares/components of X- Ray items, under the Heading 9022 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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