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TMI Blog2014 (12) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... y, UPS under CTH 8504 40 90, denying the claim for exemption of basic customs duty, under Notification No.25 of 2005, dated 01.03.2005, and ordering assessment with merit rate of duty. 3. The petitioner contended that there are two types of UPS systems, namely, Stand-by Power Systems and Online UPS Systems and the exemption notification, on which the petitioner placed reliance is an unconditional one and does not require any end-use proof and that the notification should be read in its plain language and since there is no end-use condition attached to it, the petitioner is eligible for the benefit of exemption. In this regard, reliance was placed on Order-in-Original No.21 / 2010, dated 11.01.2010. Further, it was contended that the order passed by the Assistant Commissioner of Customs, is per se illegal, having not followed the order, dated 11.01.2010, and it is a non speaking order. 4. Before the Appellate Authority, namely, the Commissioner of Customs (Appeals), the petitioner was represented through its counsel, who reiterated the submissions made in the Appeal Petition. It was contended that the denial of the benefit of the exemption notification is frivolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated in the notification does not stand fulfilled. By relying upon the information culled out from the website of the petitioner, it was pointed out that the goods have wide application and capable of multiple use like domestic, industrial, health care, etc., and the goods having a power rating of 200 KVA, the petitioner is bound to prove the end-use that the said goods are only used in the IT / Telecom industry to be entitle for the benefit of exemption and that the petitioner, having failed to prove the same, is not entitled to the benefit of the notification. Thus, the Appellate Authority held that the petitioner have failed to satisfy the first two conditions and it automatically follows that the petitioner do not satisfy the third condition. 7. As regards the order passed by the Assistant Commissioner of Customs, New Delhi, it was observed that the said order is not binding on the respondents, as they are not the superior quasi-judicial authorities and that apart, new facts like, multiple usage and explanatory notes to the description of the goods were not within the knowledge of the said authority, who pass the order, which has been relied on by the petitioner. Further, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er qualifies for exemption under Notification No.25 of 2005. 9. The learned counsel for the petitioner referred to the explanatory notes to Chapters 84 and 85, which deal with IT / Electronics and submitted that all goods imported for the manufacture of ITA bound items, subject to end-use condition, will also be exempted from customs duty under notification No.25/98, as amended, and in respect of other items, the respondents cannot insist on end-use certificate. In this regard, reference was also made to the notification issued by the Department of Revenue, Ministry of Finance, Government of India, dated 28.02.2005 (Clause 9.1). Further, by referring to the Chapter Heading 8504 40, which describes the goods as static converters for automatic data processing machines and units thereof and telecommunication apparatus, the same does not insist upon the end-use certificate. 10. Further, the learned counsel for the petitioner placed reliance on a decision of the Hon'ble Supreme Court in the case of Collector of Central Excise, Guntur, vs. Andhra Sugars, reported in (1998) 38 ELT 564 (SC) for the proposition that the meaning "ascribed" by the authorities issuing the notification in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit filed in support of the writ petition, no justifiable grounds have been raised by the petitioner to justify their action in by-passing the appellate remedy. Learned counsel for the petitioner also did not venture to make any submissions as to why the petitioner should not be directed to avail the alternate remedy. His contention was that the exemption notification is clear in its terms and the respondents cannot insist upon the end-use certificate, which is not contemplated in the notification, therefore, the petitioner has approached this Court. 14. Surprisingly, in the counter affidavit, the respondents have not raised any specific plea regarding the maintainability of the writ petition and the availability of an alternate remedy. Nevertheless, this, being a question of law, this Court deems it fit and appropriate to consider such an issue. 15. It is to be noted that, as against the order-in-original, dated 08.02.2012, the petitioner has filed a writ petition, in W.P.No.4095 of 2012, before this Court, without filing an appeal before the first respondent herein, under Section 128 of the said Act. This Court, by an order dated 07.01.2013, declined to entertain the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples being that an exemption notification shall be interpreted strictly. The petitioner has not denied the information, which has been uploaded in its website, which shows that the product is capable of being put to multiple use, which is not contemplated under Notification No.25 of 2005, under heading 8504 40, which describes the goods as "static converters" for automatic data processing machines and units thereof and telecommunication apparatus. Thus, it appears that the exemption notification is specific pertaining to static converters for automatic data processing machines and telecommunication apparatus. Therefore, if it is the case of the petitioner that though the product is capable of multiple use or used for automatic data processing machines or telecommunication apparatus, nothing prevented the petitioner from establishing the same and one such method is producing an end-use. 19. The Hon'ble Supreme court, in the case of Liberty Oil Mills Pvt. Ltd., v. Collector of Central Excise, reported in 1995 (75) ELT 13 (SC) held that in a case of an ambiguity or doubt regarding an exemption provision in a fiscal statute, the ambiguity or doubt will be resolved in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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