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2019 (6) TMI 264 - CESTAT HYDERABADMechanism for recovery of Excise duty - recovery of amount under Rule 8 of the Customs (Import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 - Goods used for manufacture of optical fibre cables classifiable under Chapter heading 8544 70 - benefit of N/N. 24/2005-CUS dated 01.03.2005 - HELD THAT:- The customs duty is payable as per the Tariff read with any notifications at the time of import before such goods are cleared. Wherever any notification is available, subject to conditions, such conditions must be fulfilled. In case of any doubt regarding eligibility of exemption notification, the same must be construed strictly and any benefit of doubt must be given to the revenue and against the assessee - As was evident from the excise returns filed by the assessee themselves, the optical fibre cables which they had manufactured fall under Chapter heading 9001 which were not individually sheathed. Therefore, the exemption notification was not available to the products used in manufacture of OFC falling under Chapter heading 9001. Mechanism for recovery of duty - HELD THAT:- The importer may, out of real constraints or practical considerations use the material in some other manner. In such case, the demand under section 28 will not sustain. Further, there are imports in schemes such as EPCG where there is a time limit of 8 years under the Foreign Trade Policies for fulfilment of the conditions. This is clearly beyond the normal period as well as extended period of limitation under section 28. Therefore, Section 28 is the normal section for recovery of duties. Section 143 of the Customs Act provides for recovery of duty, etc., by way of bond which is as much a part of the Customs Act as section 28. However, in order to recover duty under section 143 the bond has to be enforced and demand cannot be raised under section 28 for enforcement of a bond. The usual method of enforcing any bond is by filing of civil suit and the time limit prescribed under section 28 does not apply to any such civil suits - Section 142 provides for recovery of sums due to the Government. Therefore, whenever any bond executed under the Customs Act, Rules or Regulations also mentions that amounts may be recovered under section 142 without prejudice to any other mode of recovery, the amount may be recovered by following the procedure under section 142. If the bond does not mention so, the normal provisions to proceed upon the bond apply. The impugned order sought to recover the amount under Rule 8 of the Customs (Import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 which is not a mechanism for demand of duty. Therefore, the impugned order needs to be set aside on that ground alone. Demand under section 28 - Penalties - HELD THAT:- As rightly pointed out by the learned counsel for the appellant, the same can be demanded only by the Customs officers and not the Central Excise officers - Consequently, penalties imposed under section 112 of the Customs Act also need to fail due to lack of jurisdiction itself without going into the merits of the imposition of such penalties. Appeal disposed off.
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