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TMI Blog2018 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... ial/ inputs, through ICD, Garhi Harsaru, without payment of Customs Duty, in terms of the Notification No.25/2005 -Cus., dated 01.03.2005, as amended. The duty exemption claimed by the appellant as per the said Notification was sought to be denied by the Department on the ground that the imported goods were being used by the appellant in the manufacture of Coaxial Cables, classifiable under CTH 8544 20 10 and that since RF Feeder Cable is the same as Coaxial Cable, the appellant cannot claim the classification of the said goods under sub-heading 8544 42 & 8544 49 of the Tariff Act. Thus, the Department contended that when the manufactured product was not covered under the exemption Notification, the goods imported by the appellant for manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises - 2008 (231) ELT 110 (Tri.- Madras) and N.B. Footwear - 2007 (209) ELT 102 (Tri.-Mad.). 2.1 With regard to the classification of the product, the ld. Advocate submitted that RF Feeder Cable are classifiable under sub-heading 8544 42(fitted with connectors), or under 8544 49 (when not fitted with connectors). He accordingly, submitted that since Feeder Cables have specific use in telecommunication, the said two sub-headings are more specific entries and sub-heading 8544 20 as claimed by the Department, is a general sub-heading, having no specification in relation to their use in telecommunication. Therefore, the ld. Advocate submitted that the appellant should be eligible for the duty exemption provided under Notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inputs should not be available. He further submitted that since the period in the present case is from 01.11.2014 to 31.08.2015, issuance of Show Cause Notice by the Commissioner of Central Excise is proper and justified, in terms of the Notification No. 44/2011-Cus. (NT) dated 06.07.2011, inasmuch as such officer was assigned with the function of proper officer, for the purpose of Section 28 of the Act. Therefore, he submitted that the judgement of Hon'ble Karnataka High court in the case of Molex India Ltd. (Supra) is not applicable, since the period involved in such decided case was prior to issuance of such Notification. 4. Heard both sides and examined the case records. 5. It is an admitted fact on record that the appellant had im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by it for the manufacturing of said RF Cables were exempt by virtue of Serial No.33 of the Notification. On the basis of the declaration/bond executed by the appellant, the Customs authorities at the port of import had assessed the Bill of Entry and cleared the goods for home consumption. Subsequently, the officers of the Central Excise Department drew samples of the cables from the factory of the appellant and sent to the Department of Electronics, Malviya National Institute of Technology, Jaipur for the purpose of test. After testing of samples, the said institute vide their letter dated 30.03.2011 sent the test report to the Department, confirming that the tested sample is "co-axiable cable". We find from the impugned order that S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the goods imported by it. 7. In view of the fact that the appellant was not entitled for the benefits provided under the Notification dated 01.03.2005, the condition of observance of procedures provided under Customs Rules, 1996, does not arise. Since the bill of entry was finally assessed by the Department, for recovery of the duties not levied or short levied, the proper officer should have taken steps under Section 28 of the Act. In this case, since the Customs Officer at the port of import had assessed the bill of entry and cleared the goods for home consumption, he is the only competent authority to issue the notice under Section 28 of the Act. As discussed above, since the provisions of Rule 8 of Customs Rules, 1996 do not have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duty cannot be done by enforcing a bond, without first adjudicating the differential duty. Therefore, we are of the considered opinion that the impugned order passed by the Commissioner of Central Excise and Service Tax, Alwar cannot be sustained, as he is not the Jurisdictional Customs Officer, who assessed the imported goods, cleared by the appellant on filing the bill of entry. 9. We have also perused the case laws relied on by the appellant. The decisions were either as interim order or on facts, not applicable to the present case. Regarding the decision in Molex India (supra), we note that while certain ratio mentioned by the Tribunal regarding enforcing bond is applicable here, the Hon'ble Karnataka High Court examined the issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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