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TMI Blog2003 (9) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... ey had cleared portion of the goods by exporting under DEEC Scheme which was not mentioned in any of the shipping bills that the exports were made under export obligation under EPCG Scheme. The second allegation against the appellants are that on detailed investigation and scrutiny it was found that the appellant had paid to the supplier of the machinery technical know-how fees which had not been added to the assessable value. On this two points show cause notice was issued. However as pointed out by the Consultant that the show cause notice does not refer to Section 28 of the Act but refers only to Section 111(m) and 111(o) of the Customs Act. However the Chief Commissioner has proceeded to order for confirming of demands in terms of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and they are not required to be added in the assessable value to an extent of DM 16.00 lakhs. In this regard, they relied on the following judgments : (a) Daewoo Motors India Ltd. v. CC, New Delhi - 2000 (115) E.L.T. 489 (b) Tata Timken v. CC, Calcutta - 2001 (127) E.L.T. 772 (c) Tata Iron and Steel Co. Ltd. v. CCE CC, Bhubaneshwar - 2000 (116) E.L.T. 422. 3.It is their grievance that all the points and grounds have not been considered by the Chief Commissioner including the judgment cited and therefore the matter has to go back for re-determination. They further pointed out that mandatory penalty under Section 114A is not imposable as the said Section came into force on 28-9-96 while the import had taken p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for confiscation for non-fulfilment of the notification. She relies on the judgment rendered by the Apex Court in the case of CC (Import), Mumbai v. Jagdish Cancer Research Centre as reported in 2001 (132) E.L.T. 257 (S.C.) wherein the show cause notice for confiscation and for imposition of fine was upheld and it was held that demand of duty can be confirmed under Section 125 of the Customs Act when the goods have become confiscable for non-fulfilment of the terms of the notification and the party is required to pay duty while clearing the goods. She also refers to Section 125 of the Customs Act wherein goods can be confiscated for non-fulfilment of the export obligation and for recovery of duty thereon. 6.Consultant submits that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment as noted above has not been considered. Their contention is that the service charges are post-operative charges which has been included in the assessable value which according to the Consultant is not required to be included. This aspect of the matter is required to be examined afresh. Further invocation of Section 114A and imposition of penalty is not justified. The import had taken place much earlier to the date of promulgation of the Section. In terms of the citations referred to by the consultant the matter is required to be re-adjudicated on this point. On the aspect of concessional rate of duty on the imported machinery under EPCG Scheme and DEEC Scheme they are entitled to the benefit of Notification No. 59/87-Cus., dated 1-3-87 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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