TaxTMI 
TaxTMI 
2018 (7) TMI 711
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.... SCN demanded a duty of Rs. 1,30,22,441/- while seeking to levy penalties on the appellant and the Managing Director and Director of the company. The learned Commissioner of Customs, Bangalore passed Order-in-Original No. 21/2008 of Customs adjudication dated 31.10.2008 denying the benefit available at serial no. 252 (a) of the Notification No. 21/2002. The learned Commissioner has also confiscated the imported goods and levied a fine of 2.5 crores in lieu of confiscation. He imposed a penalty equivalent to duty on the appellants and a penalty of Rs. 10, 00,000/- each on MD (Shri Vasudeva Murthy) and Director (Shri Gopal Krishna) hence these appeals. 2. The appellants contended that in terms of the Notification No. 21/2002 Customs dated 01.03.2002 are required to be actually used in plantation sector to be eligible for concessional rate of duty. It is enough if they are capable of being used; the appellants contended that the imports were made during the period 16.12.2003 to 28.03.2007 vide 221 Bills of Entry and their assessments were final and the assessment cannot be reopened through Show Cause Notice without challenging the assessments in appeal. They have placed reliance on....
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....Department that these machines are not capable of being used in the coffee/tea/rubber plantation sector. It is an admitted fact that some of the machines have in fact been sold and used in these sectors; when the said Notification does not stipulate a condition of proof of end use, the Department cannot claim that if the intention were to grant benefit without any condition, it would have been spelt out. If it was the intention of the legislature the words 'only' or 'exclusively' or 'entirely' would have been used in the Notification; a narrow interpretation of the Notification will defeat the very object and purpose of the Notification. The appellant referred to the Hon'ble Supreme Court observation in the case of Commissioner of Customs, Kolkata vs. Rupa & Co. Ltd.- 2004 (170) ELT 129 (SC) that the term 'required for' would also include materials which are not directly used in the manufacture of the resultant product but are still required for the purpose of manufacturing resultant products. They also relied upon the following case law: (i). State of Haryana Vs Dalmia Dadri Cement Ltd 1998(14) ECR 292 (ii). UOI & Othrs Vs Tata Iron and Steel Co Ltd, Jamshepur 19....
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....antations, forestry, sericulture and other segments. In order to promote business and also to create awareness among the agriculturists, plantation owners, growers etc. we participate in tenders organized by different State Government and thus, they have come in to the contracts with Government of Karnataka (Department of Agriculture). The A.P. State Agro Industries Development Corporation Ltd etc. 99 % of the sales are done through their dealers' network and only a small percentage of cases they have supplied against tenders or through rate contract. The learned Commissioner ignored the letters received from Department of Agriculture, Government of Karnataka and the judicial precedent cited by the appellants. The bulk of their sales were for use in coffee and tea plantations and a small part of the equipment has been sold to non-plantation sector. However, as submitted the said equipment is capable of being used in the coffee/tea plantations; the Department contended that the appellants have not maintained any record indicating the customers who have purchased the aforesaid goods for use in tea, coffee and rubber plantation sector despite having prepared formats indicating the pur....
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....amil Nadu Housing Board Vs CCE Madras 1994(74) ELT9 (SC) (iv). Pushpam Pharmaceuticals Company Vs CCE 1995(78) ELT 401(SC) 11. The appellants contended that as they have not violated any condition, the imposition of mandatory penalty under Section 114 (A) is not correct and also confiscation and imposition of R.F is not tenable when goods were not available for confiscation. They placed reliance on the following case laws. (i). Shiv Kripa Pvt Ltd Vs CCE Nashik 2009(235) ELT 623 (Tri-LB) (ii). Associate Marketing Vs CC Airport 2006(195) ELT 287 (Tri-Chennai) (iii). Shiwalaya Spinning & Weaving Mills P Ltd Vs CC Amritsar 2002(146) ELT 610 (T) (iv). Chinku Exports Vs CC Calcutta 1999(112) ELT 400(T) (v). Prudential Pharmaceuticals Ltd Vs CC 2001(136) ELT 1057(T) (vi). Shilpa Trading Co Vs CC Bangalore 2008(224) ELT 453 (Tri. Ban) 12. The Departmental Representative drawing the attention to Para 1.2 of the SCN has stated that the appellants have filed a declaration to the customs at the time of clearance of the said goods that the goods were imported for use in coffee/tea/rubber plantations. He also drawn the attentio....
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....laced reliance on the judgment of the Tribunal in the case of Formic India Division Vs. C.C. Bombay, 1999 (109) ELT 787 (Tribunal) wherein the Tribunal drawing reference to Hon'ble Supreme Court of India in the case of Rajasthan Spinning and Weaving Mills Ltd. Vs. Collector of Central Excises, Jaipur, 1995 (77) ELT, 474, held that for exemption of duty, there is no question of any liberal construction of terms and scope of the exemption Notification. Such exemption Notification must be strictly construed and the assesse must bring himself squarely within the ambit of the Notification. No extended meaning can be given to the exempted item to enlarge the scope of the exemption granted by the Notification. The Departmental Representative submitted that Hon'ble Supreme Court has upheld the Order of the Tribunal's Order 2002 (142), ELT, A71 (SC). The Departmental Representative has also referred to the judgment of Tribunal in the case of Suresh Productions Pvt. Ltd, 2002 (139), ELT 733 (Tri. Chennai) wherein it was held that the terms of the Notification cannot be enlarged to grant the unit which is not a printing industry; relying on the judgment of the Bombay High Court in respect of ....
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.... for which the exemption has been availed is not disputed. What is disputed in the instant case is that the imports are items only capable of being used and not actually used. We find that serial no. 252 (A) of the Notification No. 21/2002 Customs, dated 01.03.2002 prescribes concessional rate of duty for the machinery or equipment specified in list (A) in List 32 (A), the said list 32 (A) parts of machinery for use in coffee/tea/rubber plantation sector. It is seen that the exemption Notification is applicable to purely a particular sector i.e. coffee/tea/rubber plantations. It would be said that it is applicable to any sector; the movement of goods are capable of being used in the said sector. Admittedly, some of the machines may be capable of being used other sectors also, however, for the same reason it cannot be held that the exemption will be applicable if the machines are used in other sectors. Such an interpretation would lead to mis-construction of the intent of the Notification. As observed by the learned Commissioner in the Order-in-Original, the clarification regarding the exemption Notification has been given by the Commerce Ministry to the fact that Notification inten....