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TMI Blog2017 (5) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... al relates to the applicability of concessional rate of duty to the imported items, to be used in the manufacture of said optical fiber cables in terms of notification No. 24/2005 dated 1.3.2005. As per the condition of the said notification, the appellants are required to follow the procedure set out in the Customs (import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996. The appellants got themselves registered with the Central Excise department for the manufacture of their final product i.e. optical fibre cable as also for import of the goods at concessional rate of duty in terms of said notification. 3. During the period March, 2005 to June, 2006, involved in both these appeals, the appellant import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing were initiated against the appellant by way of show cause notice dated 25.9.2008 in one case and show cause notice dated 31.12.2008 in another case wherein it was alleged that appellants have manufactured their goods without the use of individually sheathed optical fibre in which case their product would be classifiable under heading 9001 10 and the concessional rate of duty would not be available to them. The differential duty proposed in both the show cause notice was confirmed against the appellant along with confirmation of interest and imposition of penalty equivalent to 100% of duty. The adjudicating authority also upheld the invocation of longer period of limitation by recording that the appellant had breached the undertaking giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the argument, learned DR Shri Govind Dixit, has taken us through various paragraphs of the impugned order whereas the Commissioner has given a clear finding that inasmuch as the final product i.e. optical fibre cables manufactured by the appellants were found to be not containing individually sheathed optical fibre , same would not be classifiable under 8544 70 and would fall under heading 9001. If that be so, the notification benefit would not be available to the assessee inasmuch as the said headings is not a specified heading under the notification, which fact, learned advocate has also agreed to. As regards the limitation, submits the learned DR that this is a case where the appellant has declared their final product as falling und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification. However, the benefit of notification is available only to the goods of heading 8544 and declaration made by the appellant with the department that they would be using their imported material only for manufacture of cables falling under 8544 70 has been proved to be mis-declared, as is evident from the test report. If that be so, it has to be held that there was a malafide mind of the assessee to avail undue benefit in the guise of following the procedure. In such a scenario, the longer period of limitation would admittedly be available to the Revenue. As such, we find no merits in the appellants contention that demand is barred by limitation. 9. At this stage, we note from the report of the Telecommunication Engineering Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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