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TMI Blog2008 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period January to May, '04. Appeal No. C/97/2008 [erstwhile No. C/486/2005-NB(B), renumbered on transfer from New Delhi] is against a similar demand of differential duty of Rs. 64,00,445/- for the period July-Nov.'03. 2. The appellants had exported 'fuel injection pumps' and 'injectors' to U.K. after clearance under bond without payment of excise duty; these items were fitted with Diesel engines abroad; such engine assemblies were imported by M/s. Ford India from time to time; the relevant bills of entry classified the engines (without the pumps and injectors) under Heading 84.08 of the First Schedule to the Customs Tariff Act and sought clearance thereof on payment of duties of Customs viz. BCD, CVD and SAD at appropriate rates; the assessable value for this purpose did not include the value of the pumps and injectors; the bills of entry classified these pumps and injectors under SH 8413.81 and sought clearance without payment of BCD in terms of Customs Notification No. 94/96 ibid by treating the import as reimport of the exported items; no exemption was claimed in respect of CVD and SAD payable on these items; the bills of entry were assessed accordingly and the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engines should be deemed to be the same as the goods exported. This case of the appellants is based on their own interpretation of the Explanation to the Notification, which reads as under :- "For the purposes of this Notification, the goods shall not be deemed to be the same if these are reimported after being subjected to remanufacturing or reprocessing through melting, recycling or recasting abroad". Learned counsel for the appellants has reiterated this contention and has pointed out that, at the time of exports, the authorities had identified the pumps and injectors and issued the necessary export certificates. At the time of imports also, the goods were examined and the pumps fitted to the engines were identified with reference to the numbers assigned at the time of exports. The argument is that, as the pumps and injectors in the engine assembly were easily identifiable at the time of import, they should be treated as having been reimported after export and accordingly the benefit of the Notification should be extended. Another ground of these appeals, reiterated by counsel, is that the impugned orders cannot be sustained in law as they have the effect of reopening the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, when public interest was involved in interpretation of law, the court would not refuse to consider the case on its own merit, on the ground of non-filing of appeal against an earlier order. Adverting to the question of applicability of Customs Notification No.94/96 to the instant case, learned JCDR has submitted that the goods exported by the appellants were fuel injection pumps and injectors but the goods imported by them were engine assemblies, which were different from the former and, therefore, such import cannot be considered to be a reimport of the exported items, for purposes of the said Notification. He has submitted that the pumps and injectors were imported as integral parts of engine assemblies and not in the form in which they were exported. He has also pointed out that, in the case of Commissioner of Customs, Chennai v. Hewlett Packard India Sales (P) Ltd. [2007 (215) E.L.T. 484 (S.C)], it was held that pre-loaded operating system (software) recorded in Hard Disc Drive (HDD) in a laptop (imported item) was held to be an integral part of the laptop and classified under Heading 8411 of the CTA Schedule whereas operating software recorded on HDD imported separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engine in the present case. There is no denial of the fact that the pumps and injectors were not melted, recycled or recast into a different product, but these items classified by the appellants themselves under SH 8413.81 and engines classified by them under SH 8408.20 were assembled into a new product classifiable under Heading 87.08. It was this product which was presented for clearance under the subject bills of entry. On these facts, we have no hesitation to hold that, for purposes of Customs Notification No. 94/96 ibid, these imports do not merit consideration as "reimports" of the fuel injection pumps and injectors exported by the party. The benefit of the Notification has been rightly denied to the appellants on the ground of non-fulfilment of one of the substantive conditions stipulated under the first proviso to the Notification. 8. As rightly pointed out by the learned JCDR, the order passed in favour of M/s. Ford India by the Deputy Commissioner of Customs, Tuticorin cannot operate as res judicata against the proceedings impugned in the present appeals inasmuch as it is settled law that this doctrine is not applicable to taxation matters. Further, in terms of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of Maharashtra v. Digambar and in State of W.B. v. Debdas Kumar had held that though an appeal was not filed against an earlier order. When public interest is involved in interpretation of law, the Court is entitled to go into the question." We respectfully follow the view expressed by the apex court in the above judgment and hold that, in the public interest, these appeals will have to be disposed of on merits. 10. The cases of Leader Engineering Works, Amar Bitumen Allied Products and Radhasoami Satsang Saomi Bagh (supra) have been examined. In the first case, the Commissioner (Appeals) had granted the benefit of exemption under Notifications No. 70/77-C.E. (upto 15-3-1995) and No.64/95-C.E. (since 16-3-1995) to the assessee in respect of goods (ship stores) supplied to three ship-builders viz. M/s. GRSE, M/s. GSL and M/s. MDL. This was done through two separate orders, one in relation to the goods supplied to M/s. GRSE and M/s. GSL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in view of the Hon'ble Supreme Court's ruling in Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)]. It is now settled law that any duty of Customs short-levied, short-paid etc. can be recovered from an assessee through proceedings under Section 28 of the Customs Act without recourse to revision of assessment under other provisions. The view taken to this effect by this Bench in the case of Venus Enterprises was upheld by the High Court vide 2006 (199) E.L.T. 405 (Mad.) as also by the Supreme Court vide 2007 (209) E.L.T. A61 (S.C). 12. Learned counsel has forcefully argued against giving retrospective effect to the Board's Circular No.1/2005-Cus. dated 11-1-2005. It has been argued that this circular is oppressive and hence can only be applied prospectively. The circular held that fuel injection pumps and injectors exported and reimported after fitment into engines were not covered by Notification No. 94/96-Cus. We are not relying on this circular, nor do we express any view on what is called "oppressive character" of the circular. We have independently examined the provisions of the above Notification and, on strict interpretation of the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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