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TMI Blog2014 (12) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... med 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 conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst that. As issues involved is common all the Appeals are taken together for disposal. 2. Facts of the case are briefly explained. Assessee was a manufacturer of Soft ferrite powder and Soft Ferrite Components. Their factory was situated in Solan H.P. for the manufacture of the said products. They imported raw materials ferric oxide, manganous manganic oxide, manganous oxide, polyvinyl alcohol and polyethylene at 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). For this purpose, they had duly executed Bond with the Assistant Commissioner of Customs Central Excise Shimla H.P. under Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Impugned raw materials have been imported by filing Bills of Entry with the Assistant Commissioner of Customs at Mumbai. Due intimation regarding their being registered under Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 was sent by the Assistant Commissioner Shimla to the Assistant Commissioner Customs Mumbai. Based on that information, the impugned raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, he submitted that Ferrites includes Soft Ferrites and Ferrite Powder as these were only intermediate products for manufacture of Ferrites; that the notification did not differentiate between Soft Ferrites and Ferrites as claimed by the Revenue and therefore S. No. 17 and 54 of the impugned notification would cover Ferrite in any form i.e. Powder Soft (Pre Calcined) Ferrites and Calcined Ferrites. 6. Ld. DR on the other hand submitted that the jurisdiction is a fresh issue taken up by the assessee before the Tribunal and was not argued by them before the lower authorities; that in of Supreme Court decision in the case of Pahwa Chemicals Pvt. Ltd. - 2005 (181) E.L.T. 339 (S.C.) it was held that in case the SCN has been issued by an authority not having proper jurisdiction then the same is to be remitted to the authority having proper jurisdiction; that the SCN in such a situation should not be dismissed for jurisdiction alone. He further argued that the assessee was working under Bond in terms of Notification No. 25/99-Customs read with Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996, and had furnished Bond with underta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notification; that as the notification itself differentiates between Ferrite Powder/Soft Ferrits and Ferrites i.e. Calcined Ferrites, therefore assesses submission that these are all covered under Ferrites should not be admitted. He also submitted that the Exemption Notifications are to be strictly read and interpreted and no extra concessions, to what has not been specifically provided in the exemption notification, is to be allowed. It was also explained that the main difference between Soft (Pre Calcinated) Ferrites and Hard (Calcinated) Ferrites is that Soft Ferrites do not retain magnetization whereas in Hard Ferrites magnetization is permanent and that this property which is called coercivity is of importance in electronics where Ferrites are used. He also pointed out that M/s. Cosmo Ferrites in their classification list and ER1 had declared Soft Ferrites Parts under sub heading 8529 and Pre Calcined Ferrite Powder under sub-heading 3824.90 of the Central Excise Tariff Act, 1985 and no goods have been declared as Ferrites by them. 9. As regard limitation ld. DR claimed that the assessee had mislead the Revenue and that the impugned raw materials were not eligible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 8 of the Customs (Import of Goods at Concessional Rate of Duty from Manufacturer of Excisable Goods) Rules, 1996 which reads : 8. Recovery of duty in certain case. - The Assistant Commissioner of Central Excise shall ensure that the goods imported are used by the manufacturer for the intended purpose and in case they are not so used take action to recover the amount equal to the difference between the duty leviable on such goods but for the exemption and that already paid at the time of importation. 12. On going through the Tribunal decision in the case of Molex (I) Ltd. v. CC, Bangalore we find that the demand for Customs duty was raised by the Deputy/Assistant Commissioner Central Excise, Bangalore and the same was confirmed by the original authority under Rule 8 of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. Tribunal after considering the matter held that recovery under Rule 8 of the Rules, ibid by the Deputy/Assistant Commissioner of Central Excise was without jurisdiction. We note that the same is not the case here as the duty of Customs is not being recovered by the Revenue under Rule 8 ibid but under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the ratio of the Tribunal decision in the case of Molex India Ltd. 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. 14. On the issue of limitation, it is observed 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 impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on regarding the finished goods Ferrites, Pre Calcined Ferrite Powder and Soft Ferrite Parts. For previous period, there were only two entries at Serial No. 17 and 54 when the basic notification was introduced on 28-2-1999 and later on S. No. 148 was added on 1-3-2002 vide Notification No. 26/2002 and S. Nos. 189, 191, 192 and 193 were added on 8-1-2004 vide Notification No. 9/2004-Cus. of these S. Nos., S. No. 17, 54 and 193 are for Ferrites whereas S. Nos. 148 is for Pre Calcined Ferrite Powder and rests are for Soft Ferrite Parts/Pre Calcined Ferrite Powder. Therefore for the interpretation of this notification, for the period 1-7-2006 to 3-4-2007 with the amendments as noted, it is clear that Ferrites are distinct and different form Soft Ferrites (Pre Calcined) Powder and Soft Ferrite Parts i.e. while the Pre Calcined Powder and Soft Ferrite Parts do not retain magnetization, however the Hard i.e. calcined Ferrites are permanently magnetized. The notification holds Soft Ferrite Parts and Ferrite Powder (Pre Calcined) on same footing. Therefore we hold that after the amendment, Ferrites are not to include Pre Calcined Ferrite Powder or Soft Ferrite Parts. Further it is observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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