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TMI Blog2025 (3) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... to GCA countries. The prescribed CIF Value as per Advance Licence was US$ 31,200 (Rs. 9,98,400/-) and the prescribed FOB Value of Exports was US$ 41,600 (Rs. 13, 31,200/-). 2.1. The appellant imported 52,000 pieces of Blank Audio Cassettes against the Release Advice issued vide File No. S/32-BOM-CAL439/95VII. S/16- DEEC -27361/95VII dated 10.10.1995 from New Customs House vide Bill of Entry No. 829 dated 31.10.1995 availing dutyfree benefit under Notification No. 204/92-Cus dated 31.03.1992, by making corresponding entry in part 'D' of the DEEC Book and the corresponding Advance Licence duly endorsed by the then Appraiser and Assistant Commissioner of Customs. The CIF Value of the item was Rs. 7,08,240/- and the Assessable value was Rs. 7,15,322.40. The goods were classified under CTH 852390. The rate of duty as endorsed in column-8 of the DEEC Book part-1 was @ 50% Basic Custom Duty 20% Countervailing Duty and the duty forgone as endorsed in column-9 of the DEEC Book Part-1 was Rs. 5.72,258/- 3. Meanwhile, the importer vide letter No EMS/Courier dated 30.12.2002 claimed the benefit under Notification No. 48/94-CE dated 01.03.1994 for exemption from countervailing duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unities to the appellant on various dates, but none of their representatives appeared. However, a written submission dated 28.02.2009 appears to have been filed by the noticee based on which the ld. adjudicating authority, vide Order-in-Original No. KOL/CUS/AC-08/10AGr.7 dated 07.04.2010 confirmed the demand of Rs.1,88,760/- and appropriated the amount of Rs.1,10,000/- already paid by the appellant vide Customs Receipt No.90(I- 128) dated 24.07.2006 towards the confirmed duty demand. The appellant has also been asked to pay interest at the rate of 24% per annum on the confirmed duty amount from the date of clearance of the imported goods till the date of payment. 8. Against the said order, the appellant preferred an appeal before the Ld. Commissioner (Appeals) who vide the impugned order, has rejected their appeal. 8.1. Aggrieved by the said order, the appellant has filed the present appeal. 9. The submissions made by the appellant are summarized as under : - (i) The appellant submitted that due to circumstances beyond their control, they were not able to export the entire quantity of 52000 pieces of pre-recorded audio cassettes. They were able to export 34840 pieces of pre- r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 03.04.2002, 28.06.2002, 27.08.2002, 30.10.2002, 13.02.2003. Vide the aforesaid letters and reminders Appellant brought to the notice of the Customs and DGFT authorities the said lapse and requested the concerned authorities to recalculate duty amount enabling them to pay appropriate amount of duty. The Appellant denied its liability to pay interest, as demanded and requested repeatedly for early action, but to no avail. 9.1. The appellant has also made further submissions as under:- a. The Department did not appreciate that the Appellant is entitled to the benefit of CVD in terms of Exemption Notification No.48/94-CE dated 01.03.1994 as amended. It is their submission that the benefit of Exemption Notification No. 48/94-CE cannot be denied for alleged incorrect declaration of tariff entry, more so when the description of the subject goods was fully covered by the exemption notification and when there is no other Central Excise Tariff heading for "unrecorded audio cassette" except 8523.12. The department has erred while denying the benefit of Notification No. 48/94-CE while observing that the Appellant had imported the subject goods under CTH 8523.90 whereas as per the Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest. It is submitted that the goods have been imported under Notification No.204/92- Cus dated 19.05.1992 where under there is no provision for payment of interest. Admittedly Appellant had cleared the goods in terms of the aforesaid notification. In the absence of specific provision in the said notification with regard to imposition of interest, demand of interest is liable to be set aside. It is settled proposition of law that when there is no provision in the notification for demand of interest, no such demand can be raised. Reliance in this regard is placed on following judgments: * 2007 (218) ELT A124 (SC) whereby the Hon. Supreme Court of India dismissed the appeal filed by revenue against Ld. CESTAT's order as reported in 2006 (203) ELT 494 in the case of Femco Filters (P) Ltd. Vs CC, Bangalore whereby the Ld. Tribunal, amongst others, had held that as there was no provision for demand of interest in the exemption notification, demand of interest is not sustainable. * Wipro Ltd. Vs CC, Bangalore - 2008 (228) ELT 275 (Tri). This Judgment has been approved by Hon. Karnataka High Court as reported in 2012 (280) ELT 174 - CC Vs Wipro Ltd. e. The appellant submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. the office of DGFT vide its Letter dated 24/25th Jan 2002 asked the Appellant to pay customs duty amounting to Rs.1,88,760/- and interest @ 24% w.e.f. Nov.1995 till the date of payment. The aforesaid amount of duty was calculated on prorate basis on total duty amount calculated in the License/DEEC book i.e. @ 50% (Basic) + 20% (CVD), 12.1. We find that the primary contention of the appellant is that the ld. adjudicating authority has denied the benefit of Notification No. 48/94-C.E. dated 01.03.1994 on the ground of incorrect declaration of tariff entry and also on the ground that the appellant had not claimed it at the time of initial assessment. 12.2. With regard to allegation of incorrect declaration of tariff entry, we observe that the description of the subject goods is fully covered by the exemption notification and when there is no other Central Excise Tariff heading for "unrecorded audio cassette" except 8523.12, the exemption eligible to the appellant cannot be denied on the ground of incorrect tariff entry of the subject goods. Further, we observe that the incorrect tariff entry was not raised in the SCN and hence the finding of the lower authorities on this ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and collecting the duty in accordance with law - no less and also no more. It is no part of their duty to deprive an assessee of the benefit available to him in law with a view to augment the quantum of duty for the benefit of the Revenue. They must act reasonably and fairly". 14. In Kerala State Cooperative Marketing Federation Ltd. & Ors. v. Commissioner of Income Tax, (1998) 5 SCC 48 : JT 1998 (4) SC 145, interpreting Section 80-P(2)(a) of the Income Tax Act, 1961, this Court said; "We may notice that the provision is introduced with a view to encouraging and promoting growth of co- operative sector in the economic life of the country and in pursuance of the declared policy of the Government. The correct way of reading the different heads of exemption enumerated in the section would be to treat each as a separate and distinct head of exemption. Whenever a question arises as to whether any particular category of an income of a co-operative society is exempt from tax what has to be seen is whether income fell within any of the several heads of exemption. If it fell within any one head of exemption, it would be free from tax notwithstanding that the conditions of another head o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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