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TMI Blog2018 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... hile seeking to levy penalties on the appellant and the Managing Director and Director of the company. The learned Commissioner of Customs, Bangalore passed Order-in-Original No. 21/2008 of Customs adjudication dated 31.10.2008 denying the benefit available at serial no. 252 (a) of the Notification No. 21/2002. The learned Commissioner has also confiscated the imported goods and levied a fine of 2.5 crores in lieu of confiscation. He imposed a penalty equivalent to duty on the appellants and a penalty of Rs. 10, 00,000/- each on MD (Shri Vasudeva Murthy) and Director (Shri Gopal Krishna) hence these appeals. 2. The appellants contended that in terms of the Notification No. 21/2002 Customs dated 01.03.2002 are required to be actually used in plantation sector to be eligible for concessional rate of duty. It is enough if they are capable of being used; the appellants contended that the imports were made during the period 16.12.2003 to 28.03.2007 vide 221 Bills of Entry and their assessments were final and the assessment cannot be reopened through Show Cause Notice without challenging the assessments in appeal. They have placed reliance on the following: (i) CCE, Kanpur vs. Flock (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the machines have in fact been sold and used in these sectors; when the said Notification does not stipulate a condition of proof of end use, the Department cannot claim that if the intention were to grant benefit without any condition, it would have been spelt out. If it was the intention of the legislature the words 'only' or 'exclusively' or 'entirely' would have been used in the Notification; a narrow interpretation of the Notification will defeat the very object and purpose of the Notification. The appellant referred to the Hon'ble Supreme Court observation in the case of Commissioner of Customs, Kolkata vs. Rupa & Co. Ltd.- 2004 (170) ELT 129 (SC) that the term 'required for' would also include materials which are not directly used in the manufacture of the resultant product but are still required for the purpose of manufacturing resultant products. They also relied upon the following case law: (i). State of Haryana Vs Dalmia Dadri Cement Ltd 1998(14) ECR 292 (ii). UOI & Othrs Vs Tata Iron and Steel Co Ltd, Jamshepur 1977(1) ELT (J 61) (iii). Asean Trading Agency Vs CC 1991(55) ELT 253(T). This case was upheld by Supreme Court in 1997(94) ELT A 129 (iv). Kudremukh Iro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Agriculture). The A.P. State Agro Industries Development Corporation Ltd etc. 99 % of the sales are done through their dealers' network and only a small percentage of cases they have supplied against tenders or through rate contract. The learned Commissioner ignored the letters received from Department of Agriculture, Government of Karnataka and the judicial precedent cited by the appellants. The bulk of their sales were for use in coffee and tea plantations and a small part of the equipment has been sold to non-plantation sector. However, as submitted the said equipment is capable of being used in the coffee/tea plantations; the Department contended that the appellants have not maintained any record indicating the customers who have purchased the aforesaid goods for use in tea, coffee and rubber plantation sector despite having prepared formats indicating the purpose or usage of machines. The appellants would like to submit that the Notification No. 21/2002 has not prescribed any statutory record to be maintained by the importers. In the absence of such a condition, the allegation is not tenable in law. 8. The appellants contended that when the issues relate the interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (i). Shiv Kripa Pvt Ltd Vs CCE Nashik 2009(235) ELT 623 (Tri-LB) (ii). Associate Marketing Vs CC Airport 2006(195) ELT 287 (Tri-Chennai) (iii). Shiwalaya Spinning & Weaving Mills P Ltd Vs CC Amritsar 2002(146) ELT 610 (T) (iv). Chinku Exports Vs CC Calcutta 1999(112) ELT 400(T) (v). Prudential Pharmaceuticals Ltd Vs CC 2001(136) ELT 1057(T) (vi). Shilpa Trading Co Vs CC Bangalore 2008(224) ELT 453 (Tri. Ban) 12. The Departmental Representative drawing the attention to Para 1.2 of the SCN has stated that the appellants have filed a declaration to the customs at the time of clearance of the said goods that the goods were imported for use in coffee/tea/rubber plantations. He also drawn the attention to Para 65.6 of the SCN wherein the Commissioner has observed that the incentive of concessional rate of duty being provided was sector specific as seen from the Ministry of Commerce and Industries, Press release dated 23.08.2003. The exemption was granted by the Government with an intention to benefit the said sector. Therefore, the argument by the importer, that in the absence of specific condition in the Notification; the impugned equipment could be used in gardens, lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be strictly construed and the assesse must bring himself squarely within the ambit of the Notification. No extended meaning can be given to the exempted item to enlarge the scope of the exemption granted by the Notification. The Departmental Representative submitted that Hon'ble Supreme Court has upheld the Order of the Tribunal's Order 2002 (142), ELT, A71 (SC). The Departmental Representative has also referred to the judgment of Tribunal in the case of Suresh Productions Pvt. Ltd, 2002 (139), ELT 733 (Tri. Chennai) wherein it was held that the terms of the Notification cannot be enlarged to grant the unit which is not a printing industry; relying on the judgment of the Bombay High Court in respect of R.K. Chemicals 1993 (67), ELT, 79 (BOM); the Departmental Representative submitted that it is not for the custom authorities to examine as to how the goods will be used at the time of clearance of the goods; in case, subsequently, the customs authority felt that the goods are not used in the leather industry, they are free to take appropriate proceedings to recover duty which was not paid because of the exemption Notification. The Departmental Representative submitted that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification is applicable to purely a particular sector i.e. coffee/tea/rubber plantations. It would be said that it is applicable to any sector; the movement of goods are capable of being used in the said sector. Admittedly, some of the machines may be capable of being used other sectors also, however, for the same reason it cannot be held that the exemption will be applicable if the machines are used in other sectors. Such an interpretation would lead to mis-construction of the intent of the Notification. As observed by the learned Commissioner in the Order-in-Original, the clarification regarding the exemption Notification has been given by the Commerce Ministry to the fact that Notification intended for the machinery for use in coffee/tea/rubber plantation sector only/ The Notifications have been issued for exempting goods imported for use in a particular sector as there is no ambiguity. In the wording of the Notification, no interpretation needs to be taken recourse too. Going by the decision of Tribunal in the case of Formica India Division, 1999 (109), ELT, 787 (Tri.). We conclude that the Notification being sector specific the contentions of the appellants are not accepta ..... 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