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2013 (8) TMI 318 - CESTAT BANGALOREDifferential custom duty - concessional rate of duty under Notification No.21/2002 and Notification No. 21/2005 - import of goods (inputs) of Chapter 84 for manufacturing mobile/cellular phones and parts/components/ accessories of mobile phones. - As per Department the assessee could not validly claim the benefit of Sl. No. 28 either - The investigative findings made their way into a show-cause notice - in adjudication whereof the learned Commissioner denied the benefit of the Notification to the assessee and confirmed the demand of CE duty against them – Held that:- The assessee’s argument that the assessments on the Bills of Entry could not had been reopened/reviewed by way of issue of a show-cause notice u/s 28(1) of the Customs Act is, prima facie, untenable - UOI Vs. Jain Sudh Vanaspati (1996 (8) TMI 108 - SUPREME COURT OF INDIA) – claims of the assessee with regard to CENVAT credit and quantification of duty were no better. It appears, an opinion given by BSNL and one given by VJTI in favour of the appellant are the main basis for the appellant to claim that FWTs could be considered as mobile/cellular phones. Prima facie, BSNL being the buyer of the goods manufactured and supplied by the appellant cannot be considered as a detached and independent expert and therefore BSNL's opinion may not be reliable. VJTI's opinion was taken by the appellant on 03/05/2012 and submitted to the Commissioner and the same was not accepted inasmuch as the Institute's authenticity to issue such opinion/certificate was not established by the appellant and the opinion/certificate was found to have been issued without examining the basic function of the FWTs. Apparently, the adjudicating authority has stated specific and cogent reasons for not accepting either of the two certificates. Extended period of limitation - Held that:- Apart from the fact that there was difference of opinion even in the Department, the fact remains that the department officials had been regularly visiting the factory of the appellants and were in the know of the process of manufacture adopted by the appellants and to state that the appellants had played fraud on the department is difficult to sustain. - Demand beyond normal period set aside. Stay application – waiver of pre deposit - the entire demand of duties having been confirmed against the assessee for periods beyond the normal period of limitation – court granted the bar of limitation - waiver of predeposit and stay of recovery are ordered against the demands of duties on the ground of limitation - decided in favour of assessee.
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