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TMI Blog2018 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a Private Bonded Warehousing License No.83/2000-Cus dt. 25/03/2000 under Section 58 of the Customs Act, 1962. The said license was renewed on 23/07/2005 and the same was valid till 21/03/2010. They were also granted In-Bond Manufacturing Sanction Order bearing No.83/2000-Cus dt. 25/03/2000 under Section 65 of the Customs Act, 1962 for carrying out operations related to development of software. The appellant carried out STP operations from 2000 and earned Foreign Exchange. In order to carry out the activity of software development, the appellant require various items of capital goods for use in the STP premises and they applied to the Director, STPI vide their letter dt. 20/03/2000 enclosing list of capital goods required at the time of setting up of the STP unit for approval and to procure the same duty free under the provisions of the Notification No.63/97-Cus dt. 16/03/1997. The Director, STPI vide letter dt. 24/03/2000 informed the appellant that the Inter-Ministerial Standing Committee of the STPI had examined the list of the capital goods submitted by the appellant approved duty-free procurement of the same and thereafter the appellant imported the goods without payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 22/02/2006, Customs officers visited the appellant's premises and conducted physical verification of the goods procured by the appellant and the utilization and after the verification, the Department directed the appellant to pay the Customs duty foregone on the glazed frames and glass doors imported under the Bill of Entry No.586569 dt. 18/03/2004 and on the Modular workstation procured from SEZ Noida under Bill of Entry No.187/04 dt. 26/04/2004. Thereafter the appellant requested the Department to pass an order but in the meantime the appellant deposited Rs. 44,14,735/- under the provisions of Customs Act, 1962 read with Notification No 52/2003 dt. 31/03/2003 under protest. After following the due process, the Commissioner vide the impugned order confirmed the proposals in the show-cause notice and hence the present appeal. 3. Heard both the sides and perused records. 4.1 Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and documentary evidence and the law on the point. He further submitted that the appellants have procured the modular furnitures which is evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Standing Committee of the Department of Electronics. Further the certificate specifically stated that the items imported by the appellant were covered by the Customs Notification No.52/2003-Cus and as per the EXIM Policy for 2002-07, necessary approval was granted. He also submitted that if the Customs Department had a doubt regarding the certificate granted to the appellant, then they should have referred to the DGFT for clarification. He also submitted that once a Committee which also consists of a member from CBEC had authorized the appellant to import under a particular notification after examining all the necessary documents, then it is not open to the Customs Department to later on turn back and state that the goods are not eligible to the benefit of the Notification. In support of this submission, he relied upon the following decisions:- (i) GE India Technology Centre Vs. CC, Bangalore [2009(247) ELT 402 (Tri. Bang.)] (ii) DSL Software Ltd. Vs. CC [2005(181) ELT 250] (iii) Transparent Technologies Pvt Ltd. [2006(200) ELT 118 (Tri. Bang.)] 4.2. Learned counsel alternatively submitted that the items in question should be considered as capital goods and therefore e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and eligible for the benefit of Notification No.52/2003. He further submitted that it is a settled law that longer period of limitation cannot be invoked unless there is an element of fraud, collusion or any willfull mis-statement or suppression of facts. 5. On the other hand, the learned AR defended the impugned order and submitted that the imported goods do not fall in the definition of modular furniture and the said items are not exempted under the Notification No.52/2003-Cus. He further submitted that in spite of the approval from STPI, it is the duty of the Customs officer to find out as to whether the goods imported conform to the description of the goods. If the goods imported do not correspond to those mentioned in the notification, exemption cannot be given notwithstanding approval of the STPI or the Development Commissioner. She further submitted that the notification granting benefit of exemption should be strictly interpreted. As the item imported are not modular furniture, the benefit of notification cannot be given. 6.1. After considering the submissions of both the parties and perusal of material on record and the various decisions relied upon by the appellant ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the authorization issued by STPI has not been cancelled. If at all, the Department had any doubt about the entitlement of goods imported for the benefit of Notification, they should have immediately addressed the CBEC for clarification. From the records it is seen that the Department has not taken any such steps. All the appellants have followed the proper procedure in importing the goods. It is not the case of the Department that the goods were imported without knowledge of the Department. In fact, the goods were exempted and allowed to be bonded. Under these circumstances, the Commissioner's decision to hold that the goods are not entitled for the benefit of exemption Notification No. 140/91-Cus. cannot be sustained. In other words, the authorization of STPI cannot be questioned without taking steps for the cancellation of the authorization. If the Department holds that the goods are not covered by the exemption Notification, they should have issued the show cause notice within the time limit under Section 28 or Section 11A of the Acts. There are absolutely no ground in any of the four cases to invoke the longer period as all the goods were imported and installed onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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