Custom, Excise & Service Tax Tribunal
M/S Ajanta Manufacturing Ltd vs Commissioner Of Customs, Kandla on 12 October, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench at Ahmedabad Appeal No.C/115,116/2008-DB [Arising out of OIO No.KDL/COMMR/04/2008, dt.29.01.2008, passed by Commissioner of Customs, Kandla] 1. M/s Ajanta Manufacturing Ltd. 2. Shri K.S. Mehta Appellants Vs Commissioner of Customs, Kandla Respondent
Represented by:
For Appellant: Shri Anand Nainawati, Advocate For Respondent: Shri T.K. Sikdar, Authorised Representative For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision:12.10.2015 Order No. A/11410-11411/2015, dt.12.10.2015 Per: P.M. Saleem The Appellant herein is before us, being aggrieved by the findings of the Order-in-Original No.KDL/COMMR/04/2008, dt.29.01.2008, passed by Commissioner of Customs, Kandla.
2. The Appellant M/s Ajanta Manufacturing Ltd imported Fluorescent Glass Tubes and declared the same in Bills of Entry as Part of CFL (Fluorescent Glass Tube J 5 28 W) under Heading 85399010 of the Customs Tariff and cleared the same at merit rate of duty. The Revenue claimed that the same is a finished product in ready to sold condition and should have been cleared on payment of additional duty of Customs (CVD) by adopting MRP based method of assessment in accordance with Section 4A of Central Excise Act, 1944.
3. Heard both the sides. The learned Advocate for the Appellant takes us through the Order-in-Original, the Bills of Entry filed and the provisions of the Act, Notification and the case laws. He also submits that the goods were examined by the Customs Officers at the time of import, in the course of second check examination. The Adjudicating authority has accepted the classification and therefore he contents that there was no suppression of facts in the Bills of Entry. As the goods were examined and assessed finally, the impugned Show Cause Notice is hit by the mischief of limitation, since the show cause notice is issued beyond the normal period of 6 months which was the time limit at the relevant time.
4. On the other hand, the learned Authorised Representative for the Revenue, submits that the Appellants were aware that the goods are covered by the provisions of Section 4A of the Central Excise Act and they had deliberately suppressed the same and declared the goods as a part of CFL. Therefore, he contended that the extended period of 5 years will be invocable in this case.
5. In view of the submission of the learned Counsel for the Appellant that entire demand is hit by limitation, we do not go into the merits of the case. It is observed that the Appellants had filed Bills of Entry wherein the goods are described as Part of CFL (Fluorescent Glass Tubes J5) classifiable under 8539.9010. It is also observed that the goods were examined in detail by the Customs officers in second check examination and were assessed at merit rate of duty and cleared out of Customs charge. As the Assessment had become final, the relevant date of issuance of Show Cause Notice would be reckoned by the normal time limit, unless the ingredients for invoking the extended period under Section 28 of Customs Act are attracted. The Department was aware that the goods attracted MPR assessment under Section 4A of the Central Excise Act. Therefore, before final assessment of Bills of Entry, they should have raised the question of proper valuation for assessment of CVD. Since they have not done so, the extended period cannot be invoked.
6. In view of the above analysis, we find that the Order-in-Original cannot be sustained in the said respect. Hence, the impugned Order-in-Original is modified to the extent that the demand beyond the normal period of 6 months is set aside. The penalties are also set aside.
7. The appeal of the Appellant Company is partly allowed in the above terms. The appeal of Appellant No.2 is allowed.
(Dictated & Pronounced in Court)
(P.K. Das) (P.M. Saleem)
Member (Judicial) Member (Technical)
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