TaxTMI 
TaxTMI 
2015 (9) TMI 1135
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....orities and without payment of required duty. The adjudicating authority in his denovo adjudication order confirmed the demand of Rs. 24,48,632/- under section 28(2) of the Customs Act, 1962 and also imposed equal amount of penalty under section 114A of the said Act. On appeal, Commissioner (Appeals) in the impugned orders dismissed the appeal of the assessee and upheld the adjudication order. Hence the appellants have preferred these appeals. 3. Heard both sides and perused the records. 4. Shri Habibullah Basha, learned Senior Advocate appearing on behalf of the appellant submitted written synopsis and submitted that the entire demand of customs duty under section 28(2) is purely based on the order issued by the Development Commissioner which relates to the removal of goods to the DTA. The present order does not deal with the question of demand and also the question of classification whether the goods are printed books or not. He further submits that the show-cause notice was issued by Development Commissioner, MEPZ for violation of the provisions as per para 8(b) and 8(d) of FTP, 2004 09. He further submits that their nature of service is related to generating Clinical Bio ....
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....idual entry of 4911 and specific entry will prevail over residual entry. He further submits that the demand is also hit by limitation and that no penalty is imposable as what they have cleared to DTA are books classifiable under 4901 and not chargeable to any duty. He also submits that currently there is no dispute as they were clearing the same goods under Chapter 4901 to DTA at nil rate of duty by following the procedure and filing the Shipping Bill and there is no demand of customs duty for the subsequent periods. 5. On the other hand, learned AR for Revenue reiterates the findings of the adjudicating authority and the impugned order and submits that the unit is located in MEPZ, Chennai and they are fully governed by the guidelines of the conditions imposed by the Development Commissioner. She submits that they have registered with the Development Commissioner, MEPZ for clinical data management services. She drew our attention to para 18 of Order-in-Original at page 30. She further submits that they gave two different figures one to Development Commissioner and another to the Customs which has been clearly brought out in page 46 of Order-in-Appeal. Regarding the classificatio....
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....ants have cleared the goods/services to DTA without proper intimation to the Development Commissioner and also to the customs authorities. The Development Commissioner vide his order dated 21.2.2006 imposed a penalty of Rs. 5 lakhs for FTP violations and for transferring the service to DTA without obtaining proper permission from the competent authorities. The customs authorities initiated proceedings and issued show-cause notice dated 29.5.2006 demanding customs duty on the DTA sale and also proposing penalty under Section 114A of the Customs Act, 1962. The adjudicating authority in the impugned order classified the goods cleared to DTA under Chapter Heading 49119990 of Customs Tariff Act corresponding to Chapter Heading 49119990 of CETA and confirmed the demand of customs duty. We find from the impugned order that the basic activity of the appellant is relating to carrying out of research services and supplying the results in the form chromatograms and printouts and documents to various DTA units. Para 13 of the Order-in-Original dated 20.9.2007 is reproduced as under:- "Another point raised by the unit is that the Customs can verify the veracity of their statement that ....
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....ing matter, illustrated or not with the exception of publicity matter and products more specifically covered by other headings of the Chapter (particularly) Heading 49.02, 49.03 or 49.95. It includes : (A) Books and booklets consisting essentially of textual matter of any kind and printed in any language or characters, including Braille or shorthand. They include literary works of all kinds, text books and technical publications books of reference such as dictionaries, encyclopaedias and directories; catalogues for museums and public libraries (but not trade catalogues); liturgical books such as prayer books and hymn books (other than music hymn books of Heading 49.04); children s books (other than children s picture, drawing or colouring books of Heading 49.03). Such books may be bound (in paper or with soft or stiff covers) in one or more volumes, or may be in the form of printed sheets comprising the whole or a part of the complete work and designed for binding. Dust covers, clasps, book-marks and other minor accessories supplied with the books are regarded as forming part of the book. (B) Brochures, pamphlets and leaflets, whether consisting of severa....
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....ecided the question of law in favour of assessee and against the Department, but the Department had taken the mater further and this Court reversed the decision of the Larger Bench in 2001 (133) E.L.T. 9 (S.C.) = (2001) 9 SCC 74. It was, therefore, submitted that the decision of CEGAT impugned in these appeals deserves to be quashed and set aside by allowing the appeals of the Department. It was submitted that two appeals have been filed by the Department for enhancement of penalty imposed by the Commissioner of Customs since the penalty was inadequate and required to be enhanced. In view of the fact, however, that CEGAT allowed the appeals of the assessee and quashed the Order in Original passed by the Commissioner of Customs, the appeals filed by the Department were dismissed. In the light of the decision of this Court in Parasrampuria Synthetics Ltd. the decision of CEGAT deserves to be reversed. In that case, both the appeals filed by the Department for enhancement of penalty should be allowed. In the alternative, they may be remitted to CEGAT for fresh consideration on merits for passing an appropriate order in accordance with law. xxxxxxx xxxxxxxxxx xxxxxxxxxx ....
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..... A reference may be made in this connection to a decision of Court of Chancery in Pretyman v. Pretyman, (1931) 1 Ch 521. The testator in that case had by his will inter alia bequeathed all the pictures, prints, statues, sculptures, articles of vertu books, furniture and plate to his trustees. The estate of the testator included 155 original manuscripts of the series of letters and papers known as Paston letters. Those letters and papers were not in the form of loose sheets included in portfolios or kept in a safe. They were mounted, or inlaid in sheets of paper and bound up in three volumes. The question before the Court was whether those three volumes could be said to be articles of vertu or book within the meaning of the relevant statute. Replying the question in affirmative, Maugham, J. stated; To my mind it is plain that a book is not necessarily a printed book But in addition, according to the ordinary meaning of the English word book . There are many books which are not necessarily the sort of books which one finds in a library at all, and which yet are books. I might mention as an example the book which I have before me, a judge s notebook. I do not ....
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....nces of the case, Drawings, Designs and Plans in the case on hand could be said to be book . By not doing so, a clear error of law had been committed and the decision deserves to be overruled. 51. It was also submitted that so far as factual aspect is concerned, CEGAT was right in holding that Drawings, Designs and Plans imported by the assessee were covered by Tariff Heading 49.01 and were also entitled to exemption under Notifications No. 107/93-Cus. and 38/94-Cus. Alternatively, it was submitted that if this Court is of the view that CEGAT has not entered into the said question in view of the Larger Bench decision, the matter may be remitted to CEGAT directing it to consider the case afresh by applying correct test and to take an appropriate decision. 52. The learned Counsel for the Revenue submitted that Elecon Engineers Ltd. and Scientific Engineering Housing Ltd. were rendered in different context. The basic issue was whether books were covered by the entry plant under the Income Tax Act. Those decisions, therefore, have no relevance to the issue in question since the entries are different. It was also submitted that since the article in question was to be u....
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....cientific Engineering House Ltd.. Vs. Commissioner (supra) and Commissioner Vs. Wood Craft Products Ltd. 1995 (77) ELT 23 (SC) and held that the basic Chapter Heading 4901 covers printed books, brochures, leaflets and similar printed matter whether or not in single sheets whereas 4911 covers other printed matter. The Apex Court also ruled that specific or basic chapter heading 4901 should be given priority which is the main entry not the residual entry under 4911. Therefore, we find from the impugned order as well as from the earlier orders of the Commissioner (Appeals) while remanding the case to the adjudicating authority has specifically directed the lower authority to consider the Hon'ble Supreme Court's decision in Commissioner Vs. Gujarat Perstorp Electronics Ltd. (supra) as the adjudicating authority initially classified the goods under 4911 based on the Hon'ble Supreme Court's decision in the case of Commissioner Vs. Parasrampuria Synthetics Ltd. (supra), for the very reason the Commissioner (Appeals) has remanded to the adjudicating authority to examine the above Hon'ble Supreme Court's decision. Both the adjudicating authority and the appellate authority while passing the....