TMI Blog1996 (2) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Duty at the concessional rate vide Notification No. 345/96, dated 16-6-1986. The foils so imported, which had suffered duty under concessional rate, had to be used in manufacture of Plastic Film Capacitors. On information received, investigations were carried out, which revealed that the foils so imported were issued in manufacture of Mixed Dielectric Capacitors and Bombay Customs also obtained opinion from prominent Institutions namely, The Bhabha Atomic Research Centre, The Indian Institute of Technology and The Electronic Regional Test Laboratory, to the effect that Plastic Film Capacitors and Mixed Dielectric Capacitors were distinct, it was felt that the importers had wrongly availed the benefit of concessional rate of duty and were liable to pay the differential duty. After due investigation and recording of statements of the persons concerned, Show Cause Notices were issued, for the matters adjudicated by the Collector of Customs-II at Bombay, the Show Cause Notices have been issued by the Collector of Central Excise Customs, Bombay III and for the matter adjudicated by Collector-II of Central Excise Customs, Pune, the same was issued by the Collector of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how Cause Notice dated 25-11-1993 covers the period from 29-12-1988 to 31-10-1993 and as such, only part of the demand is within the normal period. He has pleaded that there is no cause to allege suppression etc. so as to invoke extended period and for that he has referred to the decision of Supreme Court in Pushpam Pharmaceuticals Co. v. Collector - 1995 (78) E.L.T. 401 (SC), Tamil Nadu Housing Board v. Collector - 1994 (74) E.L.T. 9 (SC), Cosmic Dye Chemical v. Collector - 1995 (75) E.L.T. 721 (S.C.) = 1994 (95) S.T.C. 604. 6.3 On merits, the ld. Advocate has pleaded that the DGTD have vide their letter dated 6-5-1986, clarified that the Capacitors using only Metallised Plastic Films or Hasy/plain Plastic Films as Dielectric, would be eligible to be classified as Plastic Film Capacitors where it is further clarified that the said Certificates could be used for import of Aluminium Foils for manufacture of Plastic Film Capacitors. As to the opinions obtained from prominent Institutions, the ld. Advocate has referred to some opinions obtained from the experts working in the same and other Institutions to plead that what they manufacture could also fall within the word Plastic Film ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof is duly identified in Rule 2(ii) of the Central Excise Rules, 1944. 9.2 For the performance of functions regarding Imports, Exports and collection of appropriate Customs Duty, there exists certain posts of Commissioners of Customs with their sphere of jurisdiction duly identified and for import of goods at the Port of Bombay and Collection of Customs Duties, there exists a post of Commissioner of Customs, Bombay. 9.3 The subject Show Cause Notices are basically the notice issued under the provisions of Section 28 of the Customs Act, 1962 and the said section provides for issuance of notice by the proper officer . The proper officer is defined in Section 2(34) of the Act to mean the Officer of Customs who is assigned those functions by the Board or the Collector of Customs . The definition given, thus makes it clear that only such of the officers of Customs to whom the specific functions (in the instant case, the functions of Collection of duty) are assigned, would be the proper officer and he alone, to the exclusion of any other officer of Customs, is authorised to issue the notice of demand vide Section 28(1) of the Act. This conclusion is obvious as otherwise, eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, 1962, the Show Cause-cum-Demand Notices issued by him have to be held as without jurisdication and hence, invalid and any adjudication proceedings initiated thereon have to be held as void. 10.1 A plea however, is raised that entire proceedings in any case, cannot stand vitiated as the Notices issued are composite notices both under Section 28(1) and Section 124 of the Act and no embargo exists in serving the notice under Section 124 of the Act and the said authority is already appointed as Collector of Customs. 10.2 The subject notices are composite notices and segregation thereof is not possible. There do exist some pronouncements which held that if part of the notice is beyond jurisdiction, adjudication can be continued for that much part which is within his jurisdiction to adjudicate upon. They however relate to the issues where part of the demand is time-barred and the authority adjudicating could not invoke extended period, whereas the other part was within his powers to adjudicate. The position here however is different and ratio of those pronouncements could not stand attracted so as to save part of the proceedings initiated. 11. The issue as to the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the extended period, based his conclusion only on the ground that clearance of the goods was under misdeclaration. When however, clear declaration is made before the Competent Authority issuing essentiality and Duty Concession Certificate and when such Certificates issued do not give impression that imported Aluminium Film were only for P1astic Film Capacitors and when no other specific misdeclaration appears to have been made, there could be no cause to allege any act of misdeclaration and then invoke extended period. The demand for the period beyond the normal period, therefore, has to be held as hit by the limitation prescribed under the law. In view of the findings given on merits, however the issue of time bar has become insignificant. 13.1 The main issue however is whether the appellants are entitled to concessional rate of duty vide Notification No. 345/86, dated 16-6-1986 under which concessional rate of duty is available to imports of Plain Aluminium Foil containing more than 99% Aluminium, provided the same is used for manufacture of Etched as formed Aluminium Foil Electrolytic Capacitors or Plastic Film Capacitors and the allegation is that all the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition given for Plastic Film Capacitor in the McGraw Hill Dictionary leads to indicate that even, the Mixed Dielectric Capacitors remain within the ambit of Plastic Film Capacitors.The Appellants have also produced an opinion from Secretary of International Electrotechnical Commission, Geneva, Technical Committee 33; Power Capacitors, who has also endorsed to such Mixed Dielectric Capacitors as falling within Plastic Film Capacitors. 13.4 There does not exist any specific allegation in any of the adjudication proceedings under consideration that no use whatsoever is made of Plastic as Dielectric. 13.5 Under the circumstances, what the Appellants have been manufacturing have to be accepted as still remaining within the category of Plastic Film Capacitors and as such, within the ambit of Notification No. 345/86. 14. In view of the findings on the merits as above, the import also cannot be held as unauthorised and the goods imported would not be liable to confiscation under Section 111 of the Act. The issue as to the validity of the notice under Section 124 of the Act also would not survive. 15. In the result, all the appeals are allowed and the orders appealed against are s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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