TMI Blog2006 (5) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... ts imported an item called Particle Counter and Accessories under the EPCG Scheme vide Customs Notification No. 160/92, dated 20-4-92 and paid concessional rate of duty at 15%. At the time of import they executed a Bank Guarantee to the extent of Rs. 2,80,000/-. The appellant could not fulfil the export obligations. Hence, Revenue proceeded against the appellants for recovery of differential duty. The Adjudicating Authority held that the impugned items are liable for confiscation and imposed a redemption fine of Rs. 2,50,000/-. He demanded differential duty amounting to Rs. 5,72,477/-. Interest at 24% was also demanded. A penalty of Rs. 1,00,000/- was imposed. A penalty of Rs. 50,000/- was imposed on Shri P. M. Zainful Abdeen, Director of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in McGraw Hill Dictionary of Scientific and Technical and Terms. (vii) In the case of FAL Industries Ltd. v. CC - 2003 (159) E.L.T. 215 (T), it was held that when there was non-fulfilment of EPCG obligation and duty was paid, there was no deliberate attempt to violate Notification No. 160/92. Hence, no confiscation or penalty would be sustained. Hence penalty under Section 112 is not sustainable on the Company or on the Director. 5. The learned SDR reiterated the impugned order. 6. We have gone through the records of the case carefully. At the time of import of the equipment under the EPCG licence, the appellants have executed Bank Guarantee with DGFT. The idea of giving Bank Guarantee is that in case of non-fulfilment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion counters, production counters, taxi meters, milometers, hydrometers and alike. The Particle Counter, which is the impugned goods, are different from the Counters covered by 90.29. Heading 90.29 counts the events. For example the revolution counter counts the number of revolutions per minute. Similarly, the other counters covered by 90.29. Whereas the impugned goods actually determine the number of particles in the gas. Hence, in our view the impugned goods are more appropriately classified under 90.26 and there is a lot of force in the contention of the appellant. If this view is taken, the differential duty would be Rs. 2,73,120/- and not Rs. 5,72,477/- as demanded. Further, we find that during the relevant period, there was no provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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