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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 ..... if a benefit eligible to the appellant is not claimed initially, it can be claimed even at a later stage. This view has also been taken by the Hon'ble Apex Court in the case of Share Medical Care v. Union of India [2007 (2) TMI 2 - SUPREME COURT] wherein the Hon'ble Apex Court has held that 'it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage.' Thus, the appellant is entitled to the benefit of CVD in terms of the Notification No. 48/94-C.E. dated 01.03.1994, as claimed. Demand of interest at the rate of 24% per annum - HELD THAT:- The appellant has cleared the goods as per the Notification No.204/92-Cus dated 19.05.1992. In this notification, there is no provision for collection of interest. It is observed that the Department has relied upon Board Circular No.131/95-Cus dated 20.12.1995 to raise demand of interest @24% - the Circular No.131/95- Cus dated 20.12.1995 is not applicable to the present case. Further, the interest under Section 28AB of the Customs Act, 1962 is payable only w.e.f. 28.09.1996 whereas the subject go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the import under the said Bill of Entry which was assessed in 1995. 4. As against prescribed Export obligation of 52,000 pieces of Pre-recorded audio Cassettes to the GCA Country, the advance Licence Holder exported only 34,840 Nos. of Pre-recorded Audio Cassettes (as per DGFT's Delhi letter no. 05/81/040/00789/AM. 95/ALS-11/901 dt 24/25.01.02) and thereby rendering the balance amount of 17,160 Nos. of Blank Audio cassettes unutilized excess imports in respect of which the importer was liable to pay Customs duty amounting to Rs. 1,88,760/- along with applicable interest. 5. A Show Cause cum Demand notice was issued to the importer from F.No. S60 (DEEC) Misc.236/03A Gr. 7 dated 31.07.2003 asking as to why an amount of Rs. 1.88,760/- (Rupees One Lakh Eighty Eight Thousand Seven Hundred and Sixty only) being duty leviable on the excess impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- recorded audio cassettes thereby leaving a balance of 17160 pieces of pre-recorded audio cassettes which could not be exported. (ii) In this regard, the appellant submitted that they have made earnest efforts for completion of its export obligation, however due to unforeseen circumstances and business exigencies they were not able to fulfil their export obligation within time bound schedule i.e. by 04.10.1995. It is submitted that they had applied for extension of export obligation period to the office of the DGFT vide its letter dated 06.10.1995 which was duly received and acknowledged by the concerned licensing authorities vide their R & I (receipt) No.431547 dated 06.10.95. After submission of the said application, the concerned licensing authorities asked the Appellant to extend the bank guarantee so that extension can be granted to the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods 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 Notification No.48/94-CE the relevant entry is 8523.12. The department did not appreciate that Chapter 85, both under Customs Tariff 1995-96 and Central Excise Tariff 1995-96 had same description i.e. "Prepared unrecorded media for sound recording or similar recording of other phenomena, other than products of Chapter 37". Admittedly, the imported goods are 'blank audio cassette' and that in the Central Excise Tariff 1995-96, tariff heading for "unrecorded audio cassette" is 8523.12, which is nothing but the subject imported goods i.e. "blank audio cassette'. They had declared Customs Tariff Heading as 8523.90. It is submitted that benefit of exemption notification cannot be denied on the ground that the Appellant had declared the Custom Tariff heading as 8523.90 and when there was only one Central Excise tariff heading for unrecorded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers, 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 the department has relied upon Board Circular No.131/95-Cus dated 20.12.1995 to raise demand of interest @24%. It is submitted that the said circular has no application to the facts of the instant case, amongst others on the ground that the same is beyond the date of subject bill of entry i.e. 14.09.1995 and that the same cannot be applied with retrospective effect. Further the said Circular does not deal with the subject Notification No.204/92-Cus dated 19.05.1992. The said circular refers to and deals with various notifications as referred to therein and admittedly the subject Notification No. 204/92- Cus dated 19.05.1992, where under the subject goods were imported, is not mentioned in the Circular No.131/95-Cus dated 20.12.1995. Further it is submitted that interest under Section 28AB of the Customs Act, 1962 is payable only w.e.f. 28.09.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is beyond the scope of the SCN and hence, the same is not sustainable. 12.3. With regard to the denial of benefit of Notification No. 48/94-C.E. dated 01.03.1994 on the ground that the same was not claimed by the appellant at the initial stage, we observe that if a benefit eligible to the appellant is not claimed initially, it can be claimed even at a later stage. This view has also been taken by the Hon'ble Apex Court in the case of Share Medical Care v. Union of India [2007 (209) E.L.T. 321 (S.C.)] wherein the Hon'ble Apex Court has made the following observations: - "12. In Collector of Central Excise, Baroda v. Indian Petro Chemicals, (1997) 11 SCC 318, this Court held that if two exemption notifications are applicable in a given case, the assessee may claim benefit of the more beneficial one. Similarly, in H.C.L. Limited v. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption. 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 of exemption are not satisfied and such income is not free from tax under that head of exemption. The expression "marketing" is an expression of wide import. It involves exchange functions such as buying and selling, physical functions such as storage, transportation, processing and other commercial activities such as standardisation, financing, marketing intelligence etc. Such activities can be carried on by an Apex Society rather than a primary society". 15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage." ( Emphasis supplied ) 12.4. In view of the above, we hold that the appellant is entitled to the benefit of CVD in terms of the Notification No. 48/94-C.E. da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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