TaxTMI 
TaxTMI 
2018 (9) TMI 1156
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....on use as evident by the manufacturer's product data sheet. Hence the benefit of notification has been improperly claimed. Show cause notice dated 1.6.2010 was issued to appellant inter alia, proposing rejection of notification benefit, recovery of differential duty (Rs.1,52,89,901/- + Rs. 4,66,000/-) along with interest and confiscation of the imported goods and imposition of equal penalty under various provisions of law. In adjudication, vide the impugned order dated 14.3.2012, the differential duties proposed in the show cause notice were confirmed with interest and equal penalties imposed. The goods imported vide Bill of Entry dated 6.11.2009 were confiscated under section 110A of the Customs Act, 1962, however, allowed redemption on payment of fine of Rs. 6.00 lakhs. Aggrieved, the appellants are before this forum. 2. When the matter came up for hearing, ld. Counsel for the appellant Shri Raghavan Ramabhadran made oral and written submissions, which can be broadly summarized as under:- (i) The benefit under Sl. No. 28 of the Notification No. 25/2005-Cus. was denied only on the ground that the cables are capable of carrying more than 80V. It is submitted that the cables i....
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....es had been got tested by the MSME Testing Centre, Chennai who confirmed that the cables can be used at operating voltage of about 80V and 1000V and have also certified that the cables are for power supply and for initial earthing and grounding of telecom equipments. He also submitted that on detailed examination of the goods and scrutiny of product technical data sheet downloaded from the manufacturer's website, it is seen that both the cables are of operating voltage 600 V. The operating voltage of less than 80V mentioned in the importers invoice was contrary to the specifications mentioned in the foreign manufacturer's own technical specifications of the product. From emails between the appellant and the foreign manufacturer, it is also evident that the cables are rated more than 80V and less than 1000V and are in fact more than appropriate for use as power cables for telecom applications. 4. Heard both sides and have gone through the records. 5.1 To better appreciate the issue in dispute, it would be useful to reproduce the relevant part of the Notification 25/2005-Cus. "Exemption to specified goods of Chapters 84 and 85 In exercise of the powers conferred by sub-se....
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....er rated capacity not exceeding 80V, they would surely not be eligible for the benefit of exemption under Sl. No. 28 of Notification 25/2005. This conclusion is strengthened from our observation that there is yet another entry at Sl. No. 29 which provides succor to another type of electric conductors used in telecommunications, namely, those which have a capacity exceeding 80V but not exceeding 1000V, i.e. 80V to 1000V capacity and fitted with connectors. 5.4 It is not always the intention of the Legislature to provide duty exemption or reduced duty liability on all goods that could be covered within a particular Customs Tariff Heading. There is a pick and choose policy based on various socio-economic objectives, towards which end, the Legislature very often creates lower tariff walls for goods of certain specifications, selectively, while retaining higher customs duty on others. In the instant case, it is but obvious that the impugned notification benefit is very limited in scope only, to a particular type of electric conductors of capacity not exceeding 80V, used in telecommunications and not every type of electric conductors used for telecommunications. 5.6 In the event, we ar....
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....cables imported and accounted the same in their books of records and used only for the manufacture of cable assemblies and supplied the said cable assemblies to OE manufacturers in the Telecom infrastructure industry. 3. The notice has filed periodical returns indicating the excisable product manufactured and cleared from their factory, the fact of which is not under dispute. Therefore, it is claimed that they have substantially complied with the provisions of the said rules and non-production of certificate at the time of import cannot be ground to deny the exemption when the substantial provisions of the procedure have been fulfilled. In support the importer has placed reliance on the following case laws; 1. High Tec Arai Ltd Vs CC Chennai reported in 2007 (220) E.L.T.166 (Tri. - Chennai) 2. L.M.L.LTD. Vs C.C.Ex Kanpur reported in 1999 (109) E.L.T.482 (Tribunal) 3. 1992 (61) ELT 352 (SC), in the case of M/s. Thermax Pvt. Ltd. It is submitted by the importer that in the above cited cases tribunal has held that benefit of exemption notification shall not be denied on the sole ground that benefit have not been claimed at the time of import. It is submitted that in the Ther....