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2013 (10) TMI 1258 - AT - CustomsBenefit of the Notification 97/2004-Cus., dated 17-9-2004 - Import of catalysts - Ommission of consumable from benefit of Notification - Whether appellant are entitled to claim exemption for catalyst imported as spares or not - Held that:- as the FTP 2004-2009 and EPCG licence issued thereunder, clearly specifies that ‘catalysts’ are different from ‘consumables’ and are covered under para 5.1A of the policy as spares, catalysts, etc. Therefore, following the decision of Suttons & Sons (India) P. Ltd. (1994 (2) TMI 298 - HIGH COURT OF CALCUTTA) the Notification in question is to be read harmoniously with the provisions of FTP 2004-2009. The provisions of Foreign Trade Policy shall prevail over the Notification of the Customs authorities as the customs authorities do not have any power to curtail the import unless such curtailment is warranted by the import policy. Therefore, during the impugned period the appellant are entitled for the benefit of the Notification No. 97/2004 as amended - as per Notification 97/2004-Cus., dated 17-9-2004, the exemption for spare parts is given at Sr. No. 5 but the allegation against the appellant is that they have cleared the catalyst at Sr. No. 1 as capital goods. This allegation against the appellant is not sustainable as in the EDI system. Sr. Nos. 1 & 2 were generated but did not include Sr. No. 5. As per the FTP para 5.1A the appellant are allowed to import ‘catalyst’. Para 5.1A deals with only spare parts, catalyst and at the time of clearance of goods, the EPCG licence were produced by the appellant before the customs officers for endorsement in their licence. Therefore, after examining the licence, the goods were assessed and allowed to be cleared duty free. In that situation, the allegation of suppression against the appellant again does not survive. Admittedly, in this case goods were imported during the period 2007-2008 and show-cause notice have been issued on 31-3-2010 invoking the extended period of limitation on the ground of suppression with an intend to evade payment of duty. As the allegation of suppression is not sustainable against the appellant, therefore, the demand against the appellant is time-barred - Decided in favour of assessee.
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