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TMI Blog2018 (9) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... icability of Rule 8 quoted above is made, which goes to the root of the matter - the impugned order of the learned Tribunal cannot be sustained and the matter deserves to be remanded back to the learned Tribunal for deciding the appeal again on merits, in accordance with law. Appeal allowed by way of remand. - CSTA. No. 1/2015 - - - Dated:- 29-8-2018 - Dr. VINEET KOTHARI AND Mrs. S. SUJATHA JJ. Mr.Jeevan J. Neeralgi, Advocate for Appellant Revenue Mr. Mahantesh Shettar, Advocate for respondent - Assessee JUDGMENT Dr. VINEET KOTHARI J. 1. Heard the learned Counsel for the Revenue. 2. The Revenue has filed this appeal against the order dated 23.06.2014 passed by the CESTAT, South Zonal Branch, Bengaluru, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; there is no allegation that batteries are diverted; there is no allegation that batteries were not accounted for properly. The only allegation is that the batteries cannot be considered as part of mobile handsets and phones. In this regard, we find ourselves in agreement with the first submission that whether batteries can be considered as part or not is a question that would be decided by the Customs assessing authority and jurisdictional Central Excise officers do not have jurisdiction on it, prima facie, is correct. Further, we also find ourselves in agreement that it cannot be said that the appellants have not used the batteries for the purpose on which they were imported. 4. The second ground taken by the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the issue of batteries required for manufacture of Mobile Handsets or not, I find that the assessee has argued that the adjudication of the issue is not within the jurisdiction of the Assistant Commissioner of Central Excise. To obtain benefit under Notification No. 21/05 Cus. dt. 01.03.2005 superseded by Notification No. 23/2010-Cus dt. 27.02.2010, the procedure as prescribed under Customs (IGCRDMEG) Rules, 1996 is to be followed. On plain reading of the Customs (IGCRDMEG) Rules, 1996, it is evident that Rule 8 of the said rules relating to recovery of duty rest only with the jurisdictional Deputy/Assistant Commissioner of Central Excise and also the fact that the Bond/Bank Guarantee under the said Rules is executed before the same auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (IGCRDMEG) Rules, 1996, by enforcing the Bond bearing Sl.No.06/2009-10 dated 30.06.2009 executed for an amount of ₹ 20,00,000/- if the same is not paid. From the order of Commissioner (Appeals) dated 22.08.2012 : 8. From a close reading of both the above rules, it is quite clear that the emphasis is on the actual usage of the imported items in the manufacture of excisable goods which has to be ensured by the jurisdictional Assistant Commissioner, who is the proper officer in the given context. Further by virtue of rule 8 above, the proper officer is also empowered to recover the customs duty along with interest, if the said condition is not fulfilled. As such, I find the appellants argument to the effect that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as dealt at length at para 17 of his findings and has concluded that the appellants failed to establish that the impugned batteries were actually received at the registered premises of the appellants. In this regard there are no two opinions on the fact that Rule 4(3) ibid (reproduced below) specifies and allows import for use in the factory of the importer i.e., the registered premises. 6. We have heard the learned counsel for the Revenue. The respondent assessee is unrepresented though the name of Sri. Mahantesh Shettar is shown in the cause list. 7. Rule 8 of Customs (IGCRDMEG) Rules, 1996 is quoted below for ready reference : RULE 8. Recovery of duty in certain case. The Assistant Commissioner of Central Excise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the concessional rate of customs duty. 9. There is neither any finding of the Tribunal in this regard as to how the batteries in question were used in the manufacture of handsets or not, nor any discussion on the applicability of Rule 8 quoted above is made, which goes to the root of the matter. 10. Therefore, in our opinion, the impugned order of the learned Tribunal cannot be sustained and the matter deserves to be remanded back to the learned Tribunal for deciding the appeal again on merits, in accordance with law. 11. Therefore, the present appeal filed by the Revenue is allowed and the impugned order of the CESTAT dated 23.06.2014 is set aside, and the matter is restored and remanded back to the learned Tribunal for deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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