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TMI Blog2019 (2) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... los on the ground that while filing the Bill of Entry, appellants have shown the address of the premises which was not the same as the premises in respect of which the Bond was executed - Held that:- N/N. 21/2005 itself is admissible on the basis of the certificate given by the jurisdictional officer and in terms of Bond executed before him. When the certificate was issued for a particular premises and a Bill of entry filed indicating some wrong address of the same person, the error in mentioning address cannot be anything but a clerical error - Because the certificate indicating the correct address was part of the assessment documents. The error in address subsequently been rectified also. It is not the case of the Department that the goods were not received in the premises where they were meant for. It is also not the case that goods have not been duly accounted for. In his order the Asst. Commissioner has only stated that records for accountal and assessments were not produced before him. If such records were required, Asst. Commissioner could have called for a report on verification of receipt and usage of the said goods and thereafter, adjudicated the matter - adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mobile handsets and similar phones. They imported batteries to be used for manufacture of mobile handsets and similar phones for availing concessional rate of duty under Notification No.21/2005 dated 1.3.2005 superseded by Notification No.23/2010 dated 27.2.2010. 2.2 As required by the Notification, they executed Bond bearing Sl. No.6/2009-10 dated 30.6.2009 for an amount of ₹ 20,00,000/- still in force for the purpose of import of batteries which shall be liable to be invoked / enforced as per the terms of the said Bond in case the assessee fails to pay the above demanded duties of Customs, by the jurisdictional Central Excise officer. 2.3 On the strength of this Bond, they were allowed clearances of the said batteries under concessional rate against Bills of Entry filed by them at ICD, Bangalore. 2.4 While filing the Bill of Entry, appellants have shown the address of the premises which was not the same as the premises in respect of which the Bond was executed. However, the goods cleared were received in the premises in respect of which Bond was executed. A show-cause notice was issued to the appellants alleging that the said batteries are not parts / accessorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants and set aside the demand of Customs duty. Consequently, the interest and penalties were also set aside. 2.10 Against this order, Revenue filed an appeal before the High Court and High Court has remanded this matter back to Tribunal for the consideration as stated in para 1 above. 3. We have heard Shri Raghavendra, Advocate for the appellant and Shri K. Murali, AR for the Revenue. 3.1 Arguing for the appellants, learned counsel submitted the following: (i) Central Excise officer being not notified officer for the purpose of Section 28 of the Customs Act, the entire proceedings initiated by the show-cause notice are without any jurisdiction. In support of this submission, he referred to the decision of Karnataka High Court in the case of Molex India Ltd.: 2015 (317) ELT 250 (Kar.) and Pan Electronic India Ltd.: 2008 (223) ELT 669 (Tri.). (ii) In his view, if any demand of Customs duty after denying the benefit of exemption Notification was to be made it could have been made only by the Jurisdictional Customs officer at ICD, Bangalore. In support of this submission, he relied upon the following decisions: Warden Co. Pvt. Ltd. vs. CCE: 1991 (52) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erified the facts. AT the time of application, it was declared that the Batteries were imported for manufacture of mobile handsets and cellular phones. The Customs Rules, 1996 permit only those goods required for manufacture of excisable goods. Since it was declared that the goods are required for manufacture, Annexure-III was issued so as to facilitate import. Once it was known that the battery is not a part, component or accessory of mobile handset at the manufacturing stage, the action was initiated in regards the merit of the issue batteries are generally needed to operate or to facilitate functioning of the mobile handset. At no point of stage they are required for manufacture. Mobile handsets are manufactured without the requirement of a battery. Usage of battery is an activity after manufacturing as to be precise at the sales point. Thereby battery does not figure in the process of manufacture of mobile handset. Batteries are not inbuilt but only inserted externally to operate the handset i.e., Batteries are required to use the mobile handset and not to manufacture the same. The assessee themselves admit that cellular phones cannot function without battery hence accept that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty foregone at the time of import needs to be recovered along with interest. It is seen that a manufacturer registered has no option to divert or change any address as there is no scope for such amendment in the Customs (IGCRDMEG) Rules, 1996, nor remove the said imported duty free goods to job work. Therefore, the assessee argument that correction carried at in the Bills of Entry would correct/regularize the violation cannot be accepted. Further, there is no provision for any endorsement by Customs Authorities in the Customs (IGCRDMEG) Rules, 1996. No evidence of written submission made during the personal hearing. Further no registers or records maintained at their premises registered under the Rules are produced for verification to prove that the goods were actually received in their registered premises. This vindicates the view of the Department that the goods have been used somewhere. I find it appropriate to reiterate that Customs role is limited only to the extent of ensuring fulfillment of procedure and formality related to clearance of imported goods, the other issues of monitoring, recovery are vested with the Deputy/Assistant Commissioner of Central Excise having jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by the jurisdictional officer and in terms of Bond executed before him. When the certificate was issued for a particular premises and a Bill of entry filed indicating some wrong address of the same person, the error in mentioning address cannot be anything but a clerical error. Because the certificate indicating the correct address was part of the assessment documents. The error in address subsequently been rectified also. It is not the case of the Department that the goods were not received in the premises where they were meant for. It is also not the case that goods have not been duly accounted for. In his order the Asst. Commissioner has only stated that records for accountal and assessments were not produced before him. If such records were required, Asst. Commissioner could have called for a report on verification of receipt and usage of the said goods and thereafter, adjudicated the matter. Having not done so, the order of the Asst. Commissioner holding against the appellants cannot be sustained to. In our view, adjudicating authority should afford an opportunity to the appellants to produce the documents with records to receipt and accountal of the said goods in the prem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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