TaxTMI 
TaxTMI 
2013 (8) TMI 318
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....t. 01/03/2006. (c) Penalties equal to the duties imposed on them under Section 112 of the Customs Act and Section 11AC of the Central Excise Act respectively. 2. The assessee is registered with the Department for the manufacture of mobile phones/cellular phones and parts, components and accessories of mobile phones/cellular phones. They also obtained registration in October 2003 under the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 (the 1996 Rules, for short) for importing goods of Chapter 84 for manufacturing mobile/cellular phones and parts/components/ accessories of mobile phones. The assessee declared to the jurisdictional Assistant Commissioner of Central Excise under the said Rules that they were importing inputs required for manufacture of mobile/cellular phones and parts/components/ accessories of mobile phones at concessional rate of duty under Sl. No. 320 of Notification No.21/2002-Cus (as amended) and Notification No. 21/2005-Cus. They also executed a bond to cover the differential duty payable in the event of breach of the relevant condition attached to the Notification. On this basis, the impo....
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....s. had been illegitimat ely claimed by the assessee by misrepresenting/suppressing facts with intent to evade duties. According to the Department, the concession under Notification No. 21/2002-Cus (as amended) and Notification No.21/2005-Cus. was not admissible to the assessee in respect of their imports. On this basis, in the same show-cause notice a case was framed against the assessee for the purpose of recovery of duties on the imported goods also. The adjudicating authority eventually confirmed this demand also against the assessee. 4. The show-cause notice invoked the extended period of limitation on the alleged ground of mis-representation/misdeclaration/suppression of facts by the assessee with intent to evade Customs and CE duties, and the adjudicating authority upheld this allegation and ordered for recovery of the duties (with interest) along with the respective penalties. 5. Heard both sides. The submissions of the learned counsel for the appellant can be summarized as follows : - (a) FWT operates on CDMA technology, which is also cellular technology, and therefore the benefit of exemption notification as applicable to cellular phones should also b....
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....ssembly/manufacture, form part of a mobile handset or a cellular phone designed to work on CDMA technology. If that be so, the appellant is entitled to claim the benefit of the two Notifications. (e) The whole idea behind all the relevant Notifications (both Customs and Central Excise) is to make available communication facilities not only at reasonable cost but also to make them available in remote areas without laying extensive cables over long distances. Denial of the benefit of the Notifications to the assessee will defeat the very object and purpose of the Notifications. (f) The imports made by the assessee not only covered parts of FWTs imported in SKD condition but also components/parts wh ich were imported to manufacture adapters in their units. The exemp tion under the two Customs Notifications is admissible to all these imported items and, therefore, the demand of customs duty is not legally sustainable. (g) (Without prejudice to the above submissions) The quantification of the demand is incorrect inasmuch as duty has been demanded on all imports of the period 2003-04 to 2008-09 instead of restricting the demand to parts/com....
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....sue is one of classification of the goods and their eligibility for exemption under the relevant Notifications. In these circumstances, the allegation of suppression of facts is not sustainable and hence the extended period of limitation is not invocable. (Reliance placed on Madurai Power Corporation (P) Ltd. Vs. Dy. CCE, Madurai-I [2008(229) ELT 521 (Mad.)], Collector Vs. Chemphar Drugs & Liniments [1989(40) ELT 276 (SC)], Tamil Nadu Housing Board Vs. Collector [1994(74) ELT 9 (SC)] and Pushpam Pharmaceuticals Co. Vs. Collector [1995(78) ELT 401 (SC)]) (k) (Without prejudice to the above) Natural justice was denied to the assessee as the documents relevant to the issue and required by them for setting up an effective defence were not supplied to them despite repeated requests. Only some documents were received by the assessee. They are yet to receive a number of documents as mentioned in their letter dt. 07/02/2012. (l) All the submissions made hereinbefore with reference to the Customs Notifications would mutatismutandis apply to the demand of CE duty arising out of denial of the benefit of the CE Notification. (m) The appellant is ....
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....y not be reliable. VJTI's opinion was taken by the appellant on 03/05/2012 and submitted to the Commissioner and the same was not accepted inasmuch as the Institute's authenticity to issue such opinion/certificate was not established by the appellant and the opinion/certificate was found to have been issued without examining the basic function of the FWTs. Apparently, the adjudicating authority has stated specific and cogent reasons for not accepting either of the two certificates. For this reason, no support can be claimed by the appellant from the case law cited by their counsel viz. Nisun Enterprises (supra), Mafatlal Fine Spg. & Mgf. Co. (supra), Bay Talkitec Pvt. Ltd. (supra) etc. From the impugned order, it appears that the calculation errors pointed out by the assessee were also examined by the Commissioner who observed that, in the absence of the related details and documents, it was not possible to modify the quantum of demand. The claim of CENVAT credit of CVD and SAD was also rejected on a similar ground. The present claims of the appellant with regard to CENVAT credit and quantification of duty are no better. We are also not, prima facie, impressed with the plea of nega....
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....be treated as mobile phones. But the view taken in the Chief Commissioners Conference was different. Thus, it appears, there is substance in the submission of the learned counsel that there was divergence of views on the issue within the Department itself. On these facts, in our view, the appellant is entitled to the benefit of the apex court's judgment in Ugam Chand Bhandari (supra) wherein their lordships held as under:- 10. Insofar as the contention raised by the appellants whether the extended period of limitation under proviso to Section 11A of the Central Excise Act could be invoked in the present cases is concerned, what is to be seen is whether there was no deliberate intention on the part of the appellants to have suppressed any material information. The plea taken by them is that under bona fide belief that the fabrics are classifiable under heading 52.07 they classified the same and the authorities had been visiting the appellants from 1986 onwards and they were aware of the process adopted in manufacturing the end product by them. The Tribunal rejected this contention. Apart from the fact that there was difference of opinion even in the Department, the fact remains t....