TaxTMI 
TaxTMI 
2009 (1) TMI 267
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....C/320/2008 M/s. Wipro GE Healthcare Private Ltd. v. CC, Bangalore OIO No. 02/2008 dt: 22/25-2-2008 Duty:Rs. 2,07,58,187/-Redemption fine:Rs. 1,20,00,000/-Penalties:(a) Rs. 30,00,000/-u/s 112(a) of the Customs Act;(b) Rs. 1,00,000/-under Rule 25 of the CE Rules. 3. C/405/2008 Shri Srikanth B. Navale, Tax Manager, Wipro GE Healthcare Private Ltd. v. CC, Bangalore -do- Penalties:(i) Rs. 2,00,000/-u/s 112(a) of the Customs Act.(b) Rs. 20,000/- as per Rule 25 of the CE Rules. 4. C/347/2008 M/s. GE Medical System India Pvt. Ltd. v. CC, Bangalore OIO No. 4/2008 dt: 27-2-2008/28-2-2008 Duty:Rs. 4,86,19,024/-Redemption Fine:Rs. 2,00,00,000/- Penalties:-(a) Rs. 48,00,000/-u/s 112(a) of Customs Act.(b) Rs. 5,00,000/-under Rule 25 of CE Rules, 2002. 5. C/406/2008 Shri Srikanth B. Navale, Tax Manager, Wipro GE Healthcare Private Ltd. v. CC, Bangalore -do- Penalties:(i) Rs. 4,00,000/-u/s 112(a) of the Customs Act.(b) Rs. 40,000/- as per Rule 25 of the CE Rules. 2. We heard both sides. 3. The facts of the case are that all the appella....
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....s have been imposed and penalties also have been imposed as mentioned in the above tabular column. This is strongly resisted by the learned advocate. 3.2 It has been stated by the learned Advocate that in respect of all these items, the goods have been imported only with the permission of the Competent Authority. They have been properly accounted for and along with the main equipment, it has been stated that in certain cases, the components, for example, in the case of Computers, the monitors are required and certain other accessories are required. Even though some of the accessories and spares are imported, they are opened in terms of the Standard Operating Procedure, tested and then they are re-packed and then they are exported. In this connection, the learned Advocate referred to the definition of 'manufacture' in terms of para 9.37 of the Foreign Trade Policy, which is as follows :- "Manufacture" means to make, produce, fabricate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, re-packing, polishing, labelling, reconditioning, repair, remaking, re....
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....acking/re-packing, as the case may be, which are recognized as process of manufacture under the provisions of the Policy, the Customs Department cannot deny the benefit of the exemption to the imports made by the appellants. 3.5 It was further urged that the Commissioner had erroneously assumed that the appellants have availed the benefit of exemption to the parts under para 10/10A of the Notification No. 52/2003-Cus., dated 31-3-2003 and Notification No. 22/2003-C.E., dated 31-3-2003. It was submitted that a close reading of para 10 of the Notification 52/2003 reveals that an importer, claiming the benefit of exemption, is required to declare at the time of import itself that the goods in question were meant to be supplied for after-sale-service along with the main equipment and in pursuance to a contract of export. The appellants submitted that this would be evident from the use of the non obstante clause used at the beginning of para 10 of Notification 52/2003. It was submitted that in a situation where they were required to export certain quantity of spares along with the main equipment, the appellants were specifically required to declare to the Customs authorities at the t....
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....h'. It was stated that even assuming that there is no manufacture and if the contention of the Department is correct, that the goods have been exported 'as such', then the appellants would be entitled for the benefit of drawback under Section 74 of the Customs Act wherein they would get the drawback at 98%, as the parts have been exported. In the case of locally procured parts, they would be entitled for the rebate of duty under Rule 18 of the Central Excise Rules. Our attention was invited to the decision of the Tribunal in the case of CCE, Bangalore v. BPL Sanyo Utilities & Appliances - 2004 (177) E.L.T. 722 (Tri.-Bang.) and in the case of Gopal Zarda Udyog v. CCE, New Delhi - 2001 (128) E.L.T. 409 (Tri.-Del.) wherein it has been held that an exercise involving scriptory arithmetic should be avoided and that any demand of duty raised resulting in a scriptory exercise would not be sustainable. It was also stated that in a question involving interpretation of law or the provisions of a Notification, in terms of Board's Circular 122/95 dated 28-11-1995, the Commissioner ought to have made a reference to the CBEC before issuing the Show Cause Notice. In this case, the clearance of CB....
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....ave fulfilled all the conditions precedent for discharge of the bond executed by them. Consequently, the bond executed by them for duty free imports under Notification 52/2003 cannot be enforced. Since they had fulfilled the conditions of Notification 52/2003, it was argued that demand could not have been issued under Section 111(o) of the Customs Act. In fact, demand ought to have been invoked under Section 28 of the Customs Act only. In respect of Section 28 also, the demand could not have been issued, as the date of issue of the Show Cause Notice is much beyond the normal period and there are no circumstances for invocation of the longer period. There are no circumstances also for invocation of the longer period. Reliance was placed on the following decisions :- (i) CCE v. Chemphar Drugs & Liniments - 1989 (40) E.L.T. 276 (S.C.) (ii) Padmini Products v. CCE - 1989 (43) E.L.T. 195 (S.C.) (iii) Puspam Pharmaceuticals Company v. CCE, Bombay - 1995 (78) E.L.T. 401 (S.C.) (iv) Ugam Chand Bhandari v. CCE - 2004 (167) E.L.T. 491 (S.C.). 3.10 The appellants submitted that they have furnished all information to the Department from time to time. Therefore, there is no groun....
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....xports have been given. The percentage of the items exported 'as such' is not at all very high. For example, in respect of Hewlett Packard, in 2003-2004, the CIF value of total import made is 89.63 crores and the CIF value of the items alleged to be exported 'as such' is only 0.43 crores. It amounts to 0.47%. In the year 2004-2005, the CIF value of total imports is 76.44 crores and the CIF value of the items alleged to be exported 'as such' in the Show Cause Notice is only 1.15 crores. The percentage is 1.50. Thus, it was submitted that a very small percentage of the imported goods have been exported according to the Department also as such. Such activity of exporting the goods is an exception. In this connection, we notice that the definition of 'manufacture', in terms of the EXIM Policy, has already been reproduced above in the submission of the learned Advocate. On comparing the definition of 'manufacture' under the Central Excise Act and the EXIM Policy, we find that EXIM Policy definition is a very broad one. Even testing, packing, repacking, labelling, re-labelling etc. are all amount to manufacture. We are of the view that keeping in mind the objectives of the EXIM Policy, t....