TMI Blog2009 (1) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... her there is mis-declaration, as alleged by the revenue? - Held that: - even though the imported goods were not ready for being used as Cinematographic Films in the sense that they could be straightaway put on a projector or a camera, the appellant cannot be said to have mis-declared them by describing and classifying them as Cinematographic Colour Films (Unexposed). The law is clearly settled as to the claiming of classification of the goods and claiming exemption under particular notification is a matter of belief and would not amount to mis-declaration. Appeal allowed. - C/712-713/2007, C/39 and 258-259/2008 - 10-14/2009 - Dated:- 12-1-2009 - S/Shri T.K. Jayaraman, M.V. Ravindran, JJ. REPRESENTED BY : S/Shri M.S. Srinivasa, Advocate and S. Ramasubramanian, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. All these appeals are directed against (Order-in-Original No. 18/2007, dated 16-8-2007; (ii) OIO No. 26/2007, dt. 15-10-2007; and (iii) No. 25/2007-Commr., dt. 25-10-2007 passed by the Commissioner of Customs, Bangalore. Since all these appeals are raising issue which is identical, they are being disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 1-3-2002, and while the said goods cleared by them should not be confiscated and penalty and interest be not imposed on the appellant companies and also on the officers of the companies. All the appellants herein contested the Show Cause Notice before the Adjudicating Authority on the grounds of limitation, on merits and also on the correct description, declaration filed by them while clearance of the goods. The Adjudicating Authority in all the cases, after considering the submissions came to the conclusion that the appellants are not eligible for the benefit of the concessional rate of duty on the goods imported by them and held as under : Order-in-Original No. 18/2007-Commr. - M/s. Suture India Pvt. Ltd. ORDER (a) I deny the benefit of exemption notification No. 17/2001-Cus., Dated 1-3-2001, Notification No. 21/2002-Cus., Dated 1-3-2002 and notification No. 6/2002-C.E., dated 1-3-2002 in respect of the imported goods seized on 12-12-2005 and the sutures and needles imported during the period from July, 2001 to September, 2005; (b) I demand the customs duty of Rs. 2,89,03,137/- being the differential duty payable on the sutures and needles imported mentioned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11(o) of the Customs Act, 1962. However, I give them an option to redeem the same on payment of redemption fine of Rs. 30,00,000/- (Rupees Thirty lakhs only) under Section 125 of the Customs Act, 1962. (d) I demand appropriate interest on the duty payable with reference to (b) above on the impugned goods under Section 28AB of Customs Act, 1962; (e) I impose a penalty of Rs. 1,50,000/- (Rupees one lakh fifty thousand only) on M/s MCo Hospital Aids Pvt. Ltd., Bangalore under Sec. 112(a) of Customs Act, 1962. Order-in-Original No. 25/2007-Commr. - M/s. Futura Surgicare Pvt. Ltd. ORDER I. I deny the benefits of concessional rate of duty under of Notification No. 17/2001-Cus., dated 1-3-2001 (Sl. No. 351B, list 30, Sl. No. 5) and/or Notification No. 21/2002-Cus., dated 1-3-2002 (Sl. No. 367B, list 38, Sl. No. 5) and Notification No. 06/2002-C.E., dated 1-3-2002 (Sl No. 268 B) should not be denied in respect of the goods imported under the subject Bills of Entry for the period from October, 2001 to May, 2006; II. I demand customs duty of Rs. 81,91,329/- being the differential duty payable on the sutures and needles imported mentioned at (1) above, under pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have correctly availed the benefit of said notification. It is his submission that assuming that the appellant is not eligible for the benefit of Notification under the category ophthalmic equipment as per List 38, they are eligible for the benefit of concessional rate of duty under List 37 of the said notification. It is his submission that the revenue s case is that the appellants are not eligible for the benefit of the Notification as the goods which were imported were not covered under the heading of atraumatic needles and sutures specifically used for ophthalmic purposes. It is his submission that the benefit of the said Notification No. 21/2002 and other earlier Notification would be available to them as they have imported sutures which can be used as cardio vascular sutures. He would submit that the Adjudicating Authority has not considered submissions on limitation. It is his submission that all the goods were cleared during the period July, 2001 to September, 2005 and a Show Cause Notice was issued on 6-6-2006. 5.1 The learned Advocate would submit that the issue is now squarely covered by the decision of the Hon ble Supreme Court in the case of Northern Plastics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would submit that as per the Sl. No. 367 as specified in List No. 38, the goods imported by the appellants in all these cases will not get covered, as that heading is only for ophthalmic equipment . It is her submission that the products imported by the appellants i.e., suture, needles cannot be considered as atraumatic needles and sutures more specifically cannot be considered as ophthalmic equipment . It is her submission that Notification does not apply at all to these appellants as the goods which were imported are nothing but raw materials. She would draw our attention to Para 16.4 of Order-in-Original and she would also draw our attention to the statements recorded of various persons, which indicates that they were aware of the fact that these goods were not ophthalmic equipment. As regards the limitation, it is her submission that suppression is proved. As the importers were manufacturers, hence, they were aware of the fact that these goods are not ophthalmic equipment but raw materials for atraumatic needles for the sutures manufactured by them. She would submit that non-challenging or non-revision of the order of the assessment passed under Section 47 is a different iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd nylon type in the thread form and also have imported surgical needles sutures and claimed the benefit of concessional rate of duty under the Notification Nos. 17/2001, 21/2002 both Customs Notifications during the relevant period. It is undisputed that the said bills of entries were cleared by the assessing authorities after considering all the documents and the papers produced by the appellants before them. In order to understand the applicability of the benefits of Notification, we reproduce the Heading No. 367 of the Notification No. 21/2002-Cus., dated 1-3-2002 (which is identical in Notification No. 17/2001-Cus.) : Sl. No. Chapter Description 367 90 or any other Chapter The following goods, namely :- (A) Medical equipment and other goods, specified in List 38; 5% [-] - (B) Parts required for the manu-facture, and spare parts required for the maintenance, of the medical equipment at (A) above. 5% Nil 11 The list attached to No. 38 is also reproduced herein below : Ophthalmic equipment, namely : - (1) to (4)......... (5) Microsurgi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List 37 for the benefit of concessional rate of duty for the entry at Sl. No. 363 of Notification No. 21/2002, we find that cardio-vascular sutures, including sternum steel sutures are eligible for the benefit of the concessional rate of duty. 10.2 It was argued by the learned SDR that these are all raw materials and what is exempted are parts required for manufacture. We do not find any merits in the said submission as Sl. No. 363(a), the entry clearly indicates that other goods specified in List No. 37. If that be so, the cardio vascular sutures imported would get covered under the said entry. 10.3 It was also mentioned by the learned SDR that the sutures which are imported by the appellants are in reel form and they are merely cut and packed and cleared after sterilization and would not get covered under the said Sl. No. In our considered opinion, the sutures which are imported by the appellants would definitely need to be cut to size for the requirement of the hospitals and the surgeons using the same. We find from the various statements recorded by the officers of the appellant that they have categorically stated that they cut the sutures to a size, crimp needles on them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision is introduced with a view to encouraging and promoting growth of co-operative sector in the economic life of the country and in pursuance of the declared policy of the Government. The correct way of reading the different heads of exemption enumerated in the section would be to treat each as a separate and distinct head of exemption. Whenever a question arises as to whether any particular category of an income of a co-operative society is exempt from tax what has to be seen is whether income fell within any of the several heads of exemption. If it fell within any one head of exemption, it would be free from tax notwithstanding that the conditions of another head of exemption are not satisfied and such income is not free from tax under that head of exemption. The expression marketing is an expression of wide import. It involves exchange functions such as buying and selling, physical functions such as storage, transportation, processing and other commercial activities such as standardisation, financing, marketing intelligence etc. Such activities can be carried on by an Apex Society rather than a primary society . (emphasis supplied) 15. From the above decisions, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge of mis-declaration of goods was based upon Section 111(m) of the Customs Act. According to the said provision the goods brought from a place outside India are liable to confiscation if the goods do not correspond in respect of value or in any other particular with the entry made under this Act . Therefore, if the description of the imported goods given to the customs authorities does not correspond in respect of value or in any other particular including its descriptions as mentioned in the Entry made under the Act, then only they can be said to have been mis-declared and, therefore liable to confiscation. The words Entry in the context of the facts of this case meant an Entry made in the Bill of Entry. Therefore, before holding that the goods were mis-declared the authorities were required to come to the conclusion that the imported goods did not correspond in respect of value on in any other particular with the description and the value of the goods as stated in the Bill of Entry. In the Bill of Entry the imported goods were described as Cinematographic Colour Films (Unexposed) Positive. The size of the goods was also mentioned in the Bill of Entry. There was no dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported goods were ordinarily used for or intended to be used for any other purpose. Therefore, even though the imported goods were not ready for being used as Cinematographic Films in the sense that they could be straightaway put on a projector or a camera, the appellant cannot be said to have mis-declared them by describing and classifying them as Cinematographic Colour Films (Unexposed). 18. The second ground on which it was held that the imported goods were mis-declared was that the appellant had wrongly stated in the Bill of Entry that it was entitled to the benefit of exemption Notification No. 52/86-Cus. as amended by Notification No. 157/88-Cus and Notification No. 50/88-C.E. In the Bill of Entry and other related documents the appellant had given specific and clear description of the goods as can be seen from the following extract from the Bill of Entry: Cinematographic Colour Films (Unexposed) Positive. Size: Length 1250 mtrs. width 1140 mm (Useable length 1250 m width 1085 mm) Total Linear Metres: 59 Rolls 1250 m = 73, 750 mtrs. Total sq. m. 1250 x 1140 x 59 = 84075. 19. The appellant had not described the rolls as jumbo rolls but had given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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