TaxTMI 
TaxTMI 
2023 (7) TMI 588
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....riff item 84717030; (ii) The exemption from payment of CVD, claimed under Notification No. 06/2006-CE dated 01.03.2006 (Serial No. 17) and Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 255), for the goods imported under various Bills of Entry as mentioned in Annexure A to the Show Cause Notice is denied; (iii) The additional duty of customs (CVD) is to be charged @10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary & Higher Secondary Education Cess and SAD at the applicable rates for the goods imported under various Bills of Entry as detailed in Annexure A to the Show Cause Notice; (iv) The demand of additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012 totally amounting to Rs 1,62,04,290/-(Rs. One Crore Sixty Two Lakhs Four Thousand Two Hundred Ninety only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-A to the Show ....
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....ariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary & Higher Secondary Education Cess and SAD at the applicable rates for the goods imported under various Bills of Entry as detailed in Annexure-B to the Show Cause Notice. (iv) The demand of additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012 totally amounting to Rs 1,67,75,245/- (Rs. One Crore Sixty Seven Lakhs Seventy Five Thousand Two Hundred Forty Five only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-B to the Show Cause Notice), which had not been paid due to willful mis-statement, is confirmed under the provisions of Section 28 of the Customs Act, 1962. (v) The demand of interest on the aforesaid Customs duties is confirmed under the provisions of Section 28AB/Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time. (vi) The amount of Rs.1,52,61,152/- (Rs. One Crore Fifty Two Lakhs Sixty One Thousand ....
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....ation Cess and Secondary & Higher Secondary Education Cess totally amounting to Rs 1.93,36,959/- (Rs. One Crore Ninety Three Lakhs Thirty Six Thousand Nine Hundred Fifty Nine only) (as detailed in Annexure-C to the Show Cause Notice), which had not been paid due to willful mis-statement, is confirmed under the provisions of Section 28 of the Customs Act, 1962. (v) The demand of interest on the aforesaid Customs duties is confirmed under the provisions of Section 28AB Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time. (vi) The amount of Rs 1,71,51,83344 (Rs. One Crore Seventy One Lakhs Fifty One Thousand Eight Hundred Thirty Three Only) voluntarily paid by M/s INGRAM MICRO INDIA MUMBAI, during investigation is appropriated towards the aforesaid Customs duties, and any other dues payable by them on their imports. The balance amount of duties, and any other dues payable are to be recovered from them. (vii) I hold the goods of the declared CIF value of Rs 32,93,22,596/- (Rupees Thirty Two Crores Ninety Three Lakhs Twenty Two Thousand Five Hundred Ninety Six only) as listed Annexure-C to the Show Cause Notice liable....
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....n No. 06/2006-CE dated 01.03.2006 (Serial No. 17) and Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 255), for these goods imported under various Bills of Entry as mentioned in Annexure A to the SCN should not be denied; (iii) why additional duty of customs (CVD) should not be charged @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12 (tariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary & Higher Secondary Education Cess and SAD at the applicable rates for the goods imported under various Bills of Entry as detailed in Annexure A to the SCN; (iv) why additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 02/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e f 17.03.2012 totally amounting to Rs 1,62,04,290/- (Rs. One Crore Sixty Two Lakhs Four Thousand Two Hundred Ninety only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-A to the SCN), which had not been paid due to willful mis-statement,should not be demanded and recovered under the provisions of Section 28 of the....
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....iable @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012 totally amounting to Rs 1,67,75,245/- (Rs. One Crore Sixty Seven Lakhs Seventy Five Thousand Two Hundred Forty Five only) along with SAD and Education Cess and Secondary & Higher Secondary Education Cess (as detailed in Annexure-B to the SCN). which had not been paid due to willful mis-statement, should not be demanded and recovered under the provisions of Section 28 of the Customs Act, 1962; (v) why interest on the aforesaid Customs duties should not be demanded and recovered under the provisions of Section 28AB/Section 28AA (from 08.04.2011) of the Customs Act, 1962, as prevalent during the material time. (vi) why the amount of Rs.1,52,61,152/- (Rs. One Crore Fifty Two Lakhs Sixty One Thousand One Hundred Fifty Two Only) voluntarily paid by M/s. INGRAM MICRO INDIA LTD., MUMBAI, during investigation should not be appropriated towards the aforesaid Customs duties, interest and any other dues payable by them on their imports: (vii) why goods of the declared CIF value of Rs 28,40,77,659/-(Rupees Twenty Eigh....
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....alent during the material time; (vi) Why the amount of Rs. 1,71,51,833/- (Rs. One Crore Seventy One Lakhs Fifty One Thousand Eight Hundred Thirty Three Only) voluntarily paid by M/s. INGRAM MICRO INDIA LTD., MUMBAI, during investigation should not be appropriated towards the aforesaid Customs duties, interest and any other dues payable by them on their imports. (vii) Why goods of the declared CIF value of Rs 32,93,22,596/-(Rupees Thirty Two Crores Ninety Three Lakhs Twenty Two Thousand Five Hundred Ninety Six only) as listed in Annexure-C to the SCN should not be held liable for confiscation under Section 111(m) of the Custom Act, 1962; (viii) Why penalty under Section 112(a) or Section 114A of the Customs Act, 1962 should not be imposed on them for their willful acts and omissions as discussed above." 2.5 By the impugned order, all the three cases for importation made from Air Cargo Complex at Delhi, Mumbai and Chennai have been adjudicated. Aggrieved by the order, appellant has filed this appeal. 3.1 We have heard Shri T. Viswanathan, Advocate for the appellant and Shri Ashwini Kumar, Additional Commissioner, Authorised Representative for the Reve....
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....rials like orders of first appellate authority on the same issue for subsequent periods. The said clarification of the Department of Electronics and Information Technology, GOI and other materials may throw some light as to the classification of the products in question. We have also noticed that both sides have not argued on these points elaborately during the proceedings hence it may have escaped our attention. As to the power of Tribunal to recall order once passed, Full Bench of Hon'ble High Court of Delhi in the case of Lachmandas Bhatia Hingwala v. Asstt. Commissioner of Income Tax - 2011 (121) DRJ 451 = 2016 (344) E.L.T. 875 (Del.), ruled that Tribunal has power to recall its order if some facts are not considered. 3.2 In view of the foregoing in our considered view, the order dated 4-10-2016 to the extent it is in respect of these applicants needs to be recalled. In the interest of justice and to be fair to both the sides, we recall our Final Order Nos. A/90720-90723/2016/CB, dated 4-10-2016 and direct the Registry to relist the appeals for fresh hearing." 4.3 In the case of the appellant, Tribunal had vide order dated 26.08.2019 rejected....
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....Court in Omprakash Verma and Ors. V/s. State of Andhra Pradesh and Ors. (2010) 13 SCC 158 to submit that doctrine of merger was applicable and he bought to the attention of the Court paragraph 73 and 74 of the said judgment. In our view, this judgment is not applicable in as much as in Omprakash Verma (supra), the Apex Court has observed that once the appeal of the State has been allowed, the net result would be that the High Court's judgment which held that the proceedings under the ULC Act were vitiated, stood merged in the decision of the Apex Court in State of A.P. V/s. N. Audikesava Reddy (2002) 1 SCC 227. In the case at hand (a) it is a statutory appeal and (b) no leave was granted or any order of admission was passed. 10. Mr. Mishra also relied upon judgment of the Apex Court in Pernod Ricard India Pvt. Ltd. V/s. Commissioner of Customs (2010) 8 SCC 313. In the said judgment, the Apex Court has held that once a statutory right of appeal is invoked, dismissal of appeal by the Supreme Court, whether by a speaking order or non speaking order, the doctrine of merger does apply. Again this judgment is not applicable in as much as in the case at hand....
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....ve also noticed that both sides have not argued on these points elaborately during the proceedings hence it may have escaped our attention. As to the power of Tribunal to recall order once passed, Full Bench of Hon'ble High Court of Delhi in the case of Lachmandas Bhatia Hingwala vs. Asst. Commissioner of Income Tax - 2011 (121) DRJ 451, ruled that Tribunal has power to recall its order if some facts are not considered. (d) subsequently the appeals by Fortune Marketing Pvt. Ltd. and two others (three appeals) have been allowed by CESTAT. Only petitioner is left out. (e) the orders passed in the rectification applications by CESTAT were also filed by petitioner in the Apex Court. (f) the doctrine of merger, in our opinion, would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits. The appeal had not even been admitted. The order of the Apex Court is also not an order rejecting the appeal and, therefore, the said order cannot be said to be an order of affirmance of the order of CESTAT. That being the position, in our view, the doctrine of merger cannot be app....
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....ive. The contention of the Revenue that they are only removable or exchangeable disk drive, is not factually or technically correct. We have perused sample of such removal or exchangeable disk drives. They have full drive mechanism in which storage media is inserted and along with such media can be removed and inserted in computer for usage. We have also perused the technical literature of the manufacturer of the impugned goods. Further, the technical opinion given by the Ministry of Communication and Information Technology, is directly on the issue. We find that in the appeal, the Revenue contested the factual findings in the impugned order. Guided by the expert opinion of the concerned Ministry and facts recorded in the impugned order, we do not find it fit to interfere with the impugned order." 4.6 Appeal filed by the Revenue against the above order has been dismissed by Hon'ble Supreme Court as reported at 2018 (360) ELT A325 (SC)]. While dismissing the appeal filed by the Revenue, Hon'ble Supreme Court observed as follows:- "3. In view of the findings recorded by the learned Customs, Excise and Service Tax Appellate Tribunal and the O.....
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....the appeal filed by M/s. Fortune Marketing Ltd., before the Hon'ble Apex Court was dismissed as on 13.01.2017. It was not disposed on merits as argued by the learned Authorised Representative and, therefore, is not applicable at all. 7. The department had filed appeal before the Hon'ble Supreme Court against the Order dated 06.01.2017 passed by CESTAT, Delhi in the case of M/s. Supertron Electronics Ltd. The said appeal was dismissed on merits taking into consideration the Office Memorandum, dated 05.06.2013 issued by Ministry of Communications & Information Technology. The counsel produced copies of the interim orders/dairy order in the case of M/s. Supertron Electronics Ltd. It is pointed out that in order, dated 08.09.2017, it was noted by the Apex Court that the appellant (department) therein, had not submitted the subsequent relevant facts of the case and the respondent's counsel was permitted to file affidavit as to bring out the subsequent facts. On 18.09.2017, the Hon'ble Apex Court noted that there has been mis-statement on the part of appellant/department, so far as, to the facts relating to earlier decision of the Apex Court dismissing the ....
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....sary, bringing out the subsequent facts with regard to the issue. On 18.09.2017, the Hon'ble Apex Court observed that there has been a mis-statement on the part of the appellant (department) insofar as, the facts relating to the earlier decision of the Apex Court in M/s. Fortune Marketing Pvt. Ltd., and thereupon decided to hear the appeal on merits. The relevant portion of the said order of Hon'ble Apex Court, dated 18.09.2017 is reproduced as under:- "Regarding the application filed by the respondent to bring additional documents and facts on record, it appears that there has been a mis-statement on the part of the appellant, insofar as, the facts relating to the earlier decision of this court dismissing the Special Leave Petition filed by M/s. Fortune Marketing Pvt. Ltd., is concerned. Learned counsel for the appellant owns up the responsibility for the aforesaid mis-statement and has tendered his unconditional apology to the court. We accept the same. We, therefore, do not consider it necessary to pursue the aforesaid aspect of the matter any further. The matter will now be considered on merits. To enable the court to do so the appellant may l....