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2022 (10) TMI 331 - AT - CustomsClassification of imported goods - rate of BCD - Microphone for Cellular Mobile Phone - Classified under CTH 85181000 or not - benefit in terms of Entry No. 6A of Notification No. 57/2017 dated 30.06.2017 as amended by 06.07.2019 - applicability of benefit of entry No. 427 / list 20 in Notification No. 50/2017 dated 30.6.2017 - period 02.02.2018 to 06.07.2019 - Penalty - HELD THAT:- All kinds of microphones irrespective of being the part of PCBA or being the part of cellular mobile phones, are subject to nil rate of duty. The Notification was applicable during the entire period in question, hence it becomes clear that even without dwelling into controversy about PCBA or cellular mobile phones, we observe that microphones are eligible to 100% exemption from the duty liability. The benefit of said notification in alternative was available to the appellant. No question of confirmation of duty demand otherwise at all arise. The benefit of Entry No. 427 has been denied by the Adjudicating Authority below for the reason that the appellant had not claimed the said benefit and ignorance of law is not a ground to claim the benefit as that of exemption - Hon’ble Apex Court in the case of Share Medical Care vs. Union of India [2007 (2) TMI 2 - SUPREME COURT] has held that where the appellant is entitled to benefit under two different Notifications, he can claim more benefit and it shall be the duty of the authorities to grant such benefit provided. Hon’ble Apex Court also clarifies that even if applicant does not claim benefit under a particular notification at initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage - It was held that even the appellant does not claim the benefit under a particular Notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage - The benefit of said Notification has to be extended in favour of the appellant. Such benefit has wrongly been denied on the ground it being claimed belatedly. The order under challenge is not sustainable on this count. Levy of penalties - HELD THAT:- Penalties can be imposed only in the case where there had been intentional malafide on the part of the assessee - there was no liability upon the appellant to pay any Customs duty while importing microphones during the relevant period. The question of non payment thereof that too with an intent to evade, does not at all arise. Penalties imposed under section 112 (b)(ii) read with section 117 of the Customs Act, 1962 does not at all arises. Appeal allowed.
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