TMI Blog2015 (2) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... legal position, then, the demand rightly fails. The Tribunal has, by majority, held that during the period when the goods were imported in India, there were certain decisions against the Revenue. The allegation of suppression with intent to evade payment of duty, therefore, is not established and proved. In the circumstances, the third Member agreed with the Member Judicial that the order confirming the demand, confiscation of the goods and imposition of penalty is not sustainable and must be set aside. While we can appreciate the anxiety of the Revenue, when the Assessee succeeded on technical ground, but, the doubtful legal position and which is required to be cleared by the higher Courts is something for which we cannot hold either the Assessee or the Revenue responsible. In the circumstances, we do not think that the Appeal raises any substantial question of law. - Decided against Revenue. - Customs Appeal No. 88 of 2014 - - - Dated:- 20-2-2015 - S. C. Dharmadhikari And Snil P. Deshmukh,JJ. For the Appellant : Mr. Pradeep S. Jetly For the Respondent : Prakash Shah with Mr. Prasad Paranjape , Mr. Jas Sanghavi and Ms. Niyati Hakani ORDER P. C. This Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation, the Revenue came to a conclusion that the Assessee has, during the period and as disclosed in their letter dated 29th October, 2007, willfully suppressed the relevant facts and with a view to evade payment of duty. The allegations in the show cause notice have therefore been relied upon and it is urged that the show cause notice relies upon the Circular and particularly CBEC Circular No. 86 of 2002 dated 12th December, 2002. The show cause notice was thus rightly adjudicated and the orderinoriginal calls upon the Assessees to pay the sums. The penalty is imposed on the company as also the Managing Director. 5) Mr. Jetly appearing for the Revenue would submit that against this order-in-original dated 18th March, 2010 an Appeal was preferred to the Tribunal and the Tribunal, by majority, has held that the royalties/ licence fees paid for the import of Beta/ Digibeta Tapes containing films are capable of being included in the assessable value of the said tapes. However, the demand in the present case is time barred. Consequently, Customs duty demand and penal consequences are not sustainable and accordingly set aside. The submission of Mr. Jetly is that the Member Techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould submit that there is a Judgment of the Hon'ble Supreme Court rendered in the case of Commissioner of Customs Excise, New Delhi vs. Living Media India Ltd. dated 17th August, 2011, reported in 2011 (271) ELT 3 (SC). Till then, the legal position was not settled. The royalty was not therefore capable of being included till then. 8) In such circumstances, this Appeal does not raise any substantial question of law, according to Mr. Shah and it deserves to be dismissed. 9) We have, with the assistance of the learned Counsel appearing for both sides, perused the Appeal paper book and the relevant paragraphs in the orders of the dissenting Members and the opinion of the third Member. The said controversy, as has been summarised in the order of the Tribunal, is that the Assessee imported recorded media such as Beta, Digibeta falling under Tariff Heading No.8523 of Customs Tariff during April, 2004 to October, 2007. These recorded media contained feature films/ programmes and they were imported through a courier agency. The duty liability was discharged by the Assessees only on the cost of media as declared by the courier agency based on the invoices submitted by the foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the appellant is that the demand is confirmed by invoking extended period of limitation on the ground of suppression of facts with intent to evade payment of duty. In this regard I find that prior to the decision of the Hon'ble Supreme Court in the case of Living Media India Ltd., there were decisions of the Tribunal in the case of Sony Music Entertainment Pvt. Ltd. vs. CC, Mumbai reported in 2005 (189) ELT 227, CC, Mumbai vs. Sony BMG Music Entertainment (I) Pvt. Ltd. reported in 2007 (218) ELT 699 and in the case of Living Media Ltd. vs. CC reported in 2002 (148) ELT 441. 23. In the case of Sony BMG Music Entertainment (I) Pvt. Ltd. (supra), the Tribunal, after taking into consideration the Hon'ble Supreme Court decision in the case of Associated Cement Companies Ltd. reported in 2001 (128) ELT 21 (SC), held against the Revenue. The Hon'ble Supreme Court in the case of Living Media India Ltd. (supra ), reversed the view taken by the Tribunal in the year 2011. In these circumstances, as during the period when the goods in question were imported into India, there were certain decisions which are against the Revenue, therefor I find merit in the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyed by Nathpa Jhakri Power Corporation were manufacturing Ready Mix Concrete (RMC) on which no central excise duty is being paid. Since the said RMC falls under Chapter Heading No. 3824.20 of the Schedule to the Central Excise Tariff Act, 1985 and is subject to Central Excise duty under Central Excise Act, 1944, duty is payable. The allegations in the show cause notice and the reply of the Assessee have been then referred extensively by the Hon'ble Supreme Court . Then, in para 5, the Hon'ble Supreme Court noted the plea relating to non applicability of the extended period of limitation. Then, the Hon'ble Supreme Court in para 9 held that it is not necessary to go in other issues, because the Appeals are bound to succeed on the point of the challenge to the extended period of limitation. 15) In paras 10 and 11, this is what the Hon'ble Supreme Court has held: - 10. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or collusion and , therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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