TaxTMI 
TaxTMI 
2008 (5) TMI 53
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....of Rs. 5,00,000/- (Rupees five lakhs only) on appellants under Section 112 of the Customs Act, 1962. 2. Heard both sides and perused the records. 3. The appellants are engaged in the manufacture of Optical Line Terminal equipment and Optical Regenerator amongst other, falling under Sub heading 8517 00 of the first Schedule to the Central Excise Tariff Act, 1985 in collaboration with M/s. NKT Electronik DK 2609, brand by DLNMARK (hereinafter referred to as the supplier). 3.1 They placed an order with the supplier vide Purchase Order No. NXD 2F 432 dated 17-4-92 for the supply of components listed in is Annexure, Laser Diode (Transmitter) and Pinfet Diode (Receiver) are listed at Sl. No. (xi), (xii). From the perusal of the aforesaid purchase order, the appellants maintained that it would be evident that they had not placed any order, for the supply of the Module or the optical front end. 3.2 During the relevant period, two divergent views were prevailing about the efficacy of Notification No. 60/88-Cus. dated 1-3-88 (as amended). One view was that when the concessions under Notification No. 60/88-Cus. cannot be extended to parts containing semi Conductors devices etc.. a compone....
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....mentioned above are eligible for exemption in question and pending cases may be finalized accordingly on the basis of the certificates issued by the Department of Electronics and the Department of Telecommunication." A letter No. 18-2/92-Prod dated 3-7-92 from the Director (IA), Department of Telecommunication addressed to the Collector of Customs, Mumbai, Delhi and Calcutta to the same effect was also issued. 3.7 That being inspired by the Order-in-Appeal and the clarification issued by the Central Board of Excise and Customs and the Director (IA), referred to above, the appellants filed two separate applications with the Assistant Commissioner of Customs (Refunds) seeking refund of the excess duty paid on Laser Diodes (Transmitter) and Pinfet Diodes (Receiver) vide Bill of Entry No. 007147 dated 20-11-92 and 6203 dated 18-12-92. First application was submitted on 4-3-93 claiming refund of Rs. 97,59,6.31/-, being in excess of the duty payable on the said items assessed vide Bill of Entry No. 007147 dated 20-11-92 and the second application was submitted on 31-5-93 seeking refund of Rs. 1,84,17,918.50, being in excess of the duty payable on the said items vide B.E. No. 6203 dated....
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....2/A/XN/204, it has been mentioned that the goods were Modules and hence the benefit of Notification is not available, (iv) that in one of the earlier imports made by them vide Bill of Entry No. 4334 dated 14-10-92, the goods bearing same nos. were shown as Module and optical front ends (v) that the goods in question viz. CX 1469 CKD had been described as MBIT- TX Module in the invoice available in the office of the appellants but the goods were described as Laser Diode in the invoice and B.E. No. 007147 dated 20-11-92 presented to customs. Similarly, the goods bearing Code No. CX 1706 CKD had been described as optical front end in the invoice available in their office but declared as Pinfet Diode in the invoice bearing the same number and the date presented of customs clearance and in the Bills of Entry, (vi) that the appellants in consultation with their advocate represented that the benefit under Notification No. 60/88-Cus. is not available to them and they should be granted the benefit under Notification No. 155/86, therefore, they voluntarily paid differential duty of Rs. 98,58,430/- (vi) that as per Technical literature presented by the representative of the appellants, code "....
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....der the said notification. They paid duty to avoid any impedance in the manufacturing schedule. However, as a sequel to Order-in-Appeal No. 754/93 BCH passed by the Commissioner (Appeals) in their own case, they filed refund claims, which were granted and are now the subject matter of the appeal. 6.3 The Dy. Commissioner of Customs CIU vide his letter F.No. CIU- INF-2/95-S710-23/99 CIU dated 3-6-99 informed that original Bill of Entry was not traceable. Therefore, the question of supplying the copy of the original does not arise. He further informed that examination order is given on the original and duplicate Bill of Entry, the examination report is given on the original Bill of Entry in the case of first appraisement and on the duplicate in the case of second appraisement. The out of charge order is given only on the duplicate Bill of Entry. Since the original Bill of Entry No. 007147 dated 20-11-92 is not traceable and the duplicate Bill of Entry is not required to be requisitioned for deciding the refund claims, the information called for cannot be given. The letter further says that customs were not allowing clearance under Notification No. 91/89 and were insisting on sample,....
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.... judgments and decision are applicable to the facts of this case. 7. The learned Joint CDR, on the other hand, took us thorough the Show Cause Notice and the impugned order passed by the Commissioner and stated that on the basis of the investigation conducted it has been conclusively proved that the appellants vide the impugned Bills of Entry, have imported 167 MBIT TX Module 1300MM and Optical Front End and not Laser Diode (Transmitter) and Pinfet Diode (Receiver), as claimed by them. Since these are Module and not parts, the appellants are not eligible to the benefit of the exemption under Notification No. 60/88-Cus 91/89-Cus and 155/86-Cus. 7.1 The learned Joint CDR also relied upon the Supreme Court judgment in the case of CCE, Bhubaneshwar v. Re-Rolling Mills reported in 1997 (94) E.L.T. 8 (S.C.) in which it was held that the Show Cause Notice under Section 11A of the Central Excise Act, 1944 can be issued for demand of the duty without reversing the order assessment under Section 35E of the Central Excise Act,. 1944. It was also observed that Section 11A of the Central Excise Act, 1944 is pari materia with Section 28 of the Customs Act, 1962. Thus, the Supreme Court judgmen....
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....issioner as reported in para 5 above, it is clearly established that the items imported are PCB Module and not component. The appellants have failed to produce the examination report, if any, of the customs, which might have been recorded on the reverse of the Bills of Entry No. 7147 dated 20-11-92 and 6203 dated 18-12-92 at the time of import of the impugned goods, inspite of our repeatedly asking for the same at the time of personal hearing. PCB Module is excluded from the purview of the Notification No. 60/88-Cus. Similarly, the benefit of the exemption under Notification No. 91/89-Cus. is also not available as the items imported are not Laser Diode (Transmitter) and Pinfet Diode (Receiver) but PCB Module. For the same reasons, the clarifications issued by the CBEC and the Department of Telecommunications vide their letter dated 8-1-93 and 3-7-92 respectively in the context of the parts/components are not applicable to the PCB Module. Similarly, the Order-in-Appeal 754/93 BCH dated 16-12-93 passed by the Commissioner (Appeals), relating to Bill of Entry No. 9258 dated 29-6-92, in which he held that the integrated circuits, so far as they are imported as individual components, ar....