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TMI Blog2023 (7) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed under Notification No. 06/2006-CE dated 01.03.2006 (Serial No. 17) and Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 255), for the goods imported under various Bills of Entry as mentioned in Annexure A to the Show Cause Notice is denied; (iii) The additional duty of customs (CVD) is to be charged @10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary & Higher Secondary Education Cess and SAD at the applicable rates for the goods imported under various Bills of Entry as detailed in Annexure A to the Show Cause Notice; (iv) The demand of additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012 totally amounting to Rs 1,62,04,290/-(Rs. One Crore Sixty Two Lakhs Four Thousand Two Hundred Ninety only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-A to the Show Cause Notice), which had not been paid due to willful mis-statement, is confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the goods imported under various Bills of Entry as detailed in Annexure-B to the Show Cause Notice. (iv) The demand of additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012 totally amounting to Rs 1,67,75,245/- (Rs. One Crore Sixty Seven Lakhs Seventy Five Thousand Two Hundred Forty Five only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-B to the Show Cause Notice), which had not been paid due to willful mis-statement, is confirmed under the provisions of Section 28 of the Customs Act, 1962. (v) The demand of interest on the aforesaid Customs duties is confirmed under the provisions of Section 28AB/Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time. (vi) The amount of Rs.1,52,61,152/- (Rs. One Crore Fifty Two Lakhs Sixty One Thousand One Hundred Fifty Two Only) voluntarily paid by M/s. INGRAM MICRO INDIA LTD., MUMBAI, during investigation is appropriated towards the aforesaid Customs dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -C to the Show Cause Notice), which had not been paid due to willful mis-statement, is confirmed under the provisions of Section 28 of the Customs Act, 1962. (v) The demand of interest on the aforesaid Customs duties is confirmed under the provisions of Section 28AB Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time. (vi) The amount of Rs 1,71,51,83344 (Rs. One Crore Seventy One Lakhs Fifty One Thousand Eight Hundred Thirty Three Only) voluntarily paid by M/s INGRAM MICRO INDIA MUMBAI, during investigation is appropriated towards the aforesaid Customs duties, and any other dues payable by them on their imports. The balance amount of duties, and any other dues payable are to be recovered from them. (vii) I hold the goods of the declared CIF value of Rs 32,93,22,596/- (Rupees Thirty Two Crores Ninety Three Lakhs Twenty Two Thousand Five Hundred Ninety Six only) as listed Annexure-C to the Show Cause Notice liable for confiscation under Section 111(m) of Com Act 1962. Since the goods are not physically available, redemption fine imposable (As discussed in para 28 above). (vii) I impose penalty equal to the duty plus applicable intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12 (tariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary & Higher Secondary Education Cess and SAD at the applicable rates for the goods imported under various Bills of Entry as detailed in Annexure A to the SCN; (iv) why additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 02/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e f 17.03.2012 totally amounting to Rs 1,62,04,290/- (Rs. One Crore Sixty Two Lakhs Four Thousand Two Hundred Ninety only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-A to the SCN), which had not been paid due to willful mis-statement,should not be demanded and recovered under the provisions of Section 28 of the Customs Act, 1962; (v) why interest on the aforesaid Customs duties should not be demanded and recovered under the provisions of Section 28AB/Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time; (vi) why the amount of Rs. 1,54,54,623/- (Rs. One Crore Fifty Four Lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the SCN). which had not been paid due to willful mis-statement, should not be demanded and recovered under the provisions of Section 28 of the Customs Act, 1962; (v) why interest on the aforesaid Customs duties should not be demanded and recovered under the provisions of Section 28AB/Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time. (vi) why the amount of Rs.1,52,61,152/- (Rs. One Crore Fifty Two Lakhs Sixty One Thousand One Hundred Fifty Two Only) voluntarily paid by M/s. INGRAM MICRO INDIA LTD., MUMBAI, during investigation should not be appropriated towards the aforesaid Customs duties, interest and any other dues payable by them on their imports: (vii) why goods of the declared CIF value of Rs 28,40,77,659/-(Rupees Twenty Eight Crores Forty Lakhs Seventy Seven Thousand Six Hundred Fifty Nine only) as listed in Annexure-B to the SCN should not be held liable for confiscation under Section 111(m) of the Custom Act, 1962; (viii) why penalty under Section 112(a) or Section 114A of the Customs Act, 1962 should not be imposed on them for their willful acts and omissions as discussed above. (C) With respect to the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crores Ninety Three Lakhs Twenty Two Thousand Five Hundred Ninety Six only) as listed in Annexure-C to the SCN should not be held liable for confiscation under Section 111(m) of the Custom Act, 1962; (viii) Why penalty under Section 112(a) or Section 114A of the Customs Act, 1962 should not be imposed on them for their willful acts and omissions as discussed above." 2.5 By the impugned order, all the three cases for importation made from Air Cargo Complex at Delhi, Mumbai and Chennai have been adjudicated. Aggrieved by the order, appellant has filed this appeal. 3.1 We have heard Shri T. Viswanathan, Advocate for the appellant and Shri Ashwini Kumar, Additional Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- * Following technical opinions issued by Government organizations are in favour of the appellant as they clearly hold that even external hard disk drives are hard disk drives: * Ministry of Communication and Information Technology dated 31.10.2013. * Centre for Development of Advanced Computing dated 12.11.2012. * The issue is squarely covered in favour of the appellant by the decision of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatia Hingwala v. Asstt. Commissioner of Income Tax - 2011 (121) DRJ 451 = 2016 (344) E.L.T. 875 (Del.), ruled that Tribunal has power to recall its order if some facts are not considered. 3.2 In view of the foregoing in our considered view, the order dated 4-10-2016 to the extent it is in respect of these applicants needs to be recalled. In the interest of justice and to be fair to both the sides, we recall our Final Order Nos. A/90720-90723/2016/CB, dated 4-10-2016 and direct the Registry to relist the appeals for fresh hearing." 4.3 In the case of the appellant, Tribunal had vide order dated 26.08.2019 rejected the application for rectification of mistake and against this order, appellant had filed Writ Petition No. 475 of 2020 before the Hon'ble High Court of Judicature at Bombay. Hon'ble High Court vide order dated 09.11.2022 observed as follows:- "6. Heard the counsels. The order dated 4th October 2016 is a common order and if the application of three other applicants/appellants is allowed on the ground that certain documents placed on record have not been considered and those are not party specific documents, certainly that benefit, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esava Reddy (2002) 1 SCC 227. In the case at hand (a) it is a statutory appeal and (b) no leave was granted or any order of admission was passed. 10. Mr. Mishra also relied upon judgment of the Apex Court in Pernod Ricard India Pvt. Ltd. V/s. Commissioner of Customs (2010) 8 SCC 313. In the said judgment, the Apex Court has held that once a statutory right of appeal is invoked, dismissal of appeal by the Supreme Court, whether by a speaking order or non speaking order, the doctrine of merger does apply. Again this judgment is not applicable in as much as in the case at hand, there was no order of dismissal of the statutory appeal. Petitioner wanted to withdraw the appeal and permission to withdraw the appeal was simplicitor granted. 11. Mr. Mishra also relied upon a judgment of the Apex Court in Sarguja Transport Service V/s. State Transport Appellate Tribunal, M.P. Gwalior and Ors (1987) 1 SCC 5. Mr. Mishra submitted that in that case petitioner had withdrawn the petition from the High Court simplicitor and the Apex Court held that a fresh petition was not maintainable. Again this judgment is not applicable to the facts of the case at hand because ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere also filed by petitioner in the Apex Court. (f) the doctrine of merger, in our opinion, would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits. The appeal had not even been admitted. The order of the Apex Court is also not an order rejecting the appeal and, therefore, the said order cannot be said to be an order of affirmance of the order of CESTAT. That being the position, in our view, the doctrine of merger cannot be applied to the facts and circumstances of this case. (g) gross injustice would be caused to petitioner if this petition is not allowed. 13. In the circumstances, we set aside the impugned order dated 26th August 2019 and direct CESTAT to consider petitioner's appeal on merits once again. The Appeal No.be heard and disposed preferably within twelve weeks." 4.4 The arguments advanced by learned AR are contrary to the observations made by Hon'ble Bombay High Court and hence the same do not support the case of the Revenue. 4.5 On the merits of the issue we find that the issue is squarely covered by the decision of the Tribunal in the case of Supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the concerned Ministry and facts recorded in the impugned order, we do not find it fit to interfere with the impugned order." 4.6 Appeal filed by the Revenue against the above order has been dismissed by Hon'ble Supreme Court as reported at 2018 (360) ELT A325 (SC)]. While dismissing the appeal filed by the Revenue, Hon'ble Supreme Court observed as follows:- "3. In view of the findings recorded by the learned Customs, Excise and Service Tax Appellate Tribunal and the O.M. dated 5-6-2013 of the Ministry of Communications and Information Technology, we find no ground to interfere. Admission is refused and the civil appeal is, accordingly, dismissed." 4.7 Chennai Bench of the Tribunal vide final order No.42907/2018 dated 16.11.2018 in appellant's own case observed as follows:- "4. Further, that CESTAT, Mumbai in the case of Fortune Marketing Pvt. Ltd., had originally decided the issue against the appellants vide Final Order, dt.04.10.2016 as referred to by the learned Authorised Representative. Though, M/s. Fortune Marketing Ltd., filed appeal to Supreme Court, they also filed ROM before CESTAT, Mumbai, and the ROM was allowed recalling the Final Order. He referred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 08.09.2017, it was noted by the Apex Court that the appellant (department) therein, had not submitted the subsequent relevant facts of the case and the respondent's counsel was permitted to file affidavit as to bring out the subsequent facts. On 18.09.2017, the Hon'ble Apex Court noted that there has been mis-statement on the part of appellant/department, so far as, to the facts relating to earlier decision of the Apex Court dismissing the CMA filed by M/s. Fortune Marketing Ltd. The appeal was posted for hearing on merits and later on 06.10.2017 was adjourned. On 25.10.2017, the appeal filed by department was dismissed by Hon'ble Supreme Court on merits upholding the decision passed by CESTAT, Delhi. That, therefore, the issue stands settled in favour of appellant as per the said judgment of Apex Court in the case of Commissioner of Customs VS M/s. Supertron Electronics Ltd., dated 25.10.2017. 8. it is also submitted that this Tribunal in the case of M/S.Fortune Marketing Ltd., vide F.O No.41862/2017, dated 24.08.2017 had allowed the exemption placing reliance on the decision laid in the case of M/s. Supertron Electronics Ltd. That the Mumbai Bench of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Fortune Marketing Pvt. Ltd., is concerned. Learned counsel for the appellant owns up the responsibility for the aforesaid mis-statement and has tendered his unconditional apology to the court. We accept the same. We, therefore, do not consider it necessary to pursue the aforesaid aspect of the matter any further. The matter will now be considered on merits. To enable the court to do so the appellant may lay before the court the steps taken by the appellant against the other two orders of the learned Tribunal classifying the subject product under sub- heading 84717020. List the matter after two weeks." 11. The matter came up for hearing on subsequent days and on 25.10.2017, the appeal was heard and dismissed. The relevant portion of the judgment of the Hon'ble Apex Court is reproduced as under: "Delay condoned. Heard the learned senior counsel appearing for the parties and perused the relevant material. In view of the findings recorded by the learned Customs, Excise and Service Tax Appellate Tribunal and the O.M. dated 05.06.2013 of the Ministry of Communications and Information Technology, we find no ground to interfere. Admission is refused and the Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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