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2017 (5) TMI 932 - CESTAT NEW DELHI

2017 (5) TMI 932 - CESTAT NEW DELHI - TMI - Applicability of concessional rate of duty to imported items in terms of N/N. 24/2005 dated 1.3.2005 - manufacture of optical fiber cables - denial on the ground that imported goods have shifted the classification - denial on the ground 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 .....

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ted 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 - the longer period of limitation would admittedly be available to the Revenue. - Wherever the cable have been found containing individually sheathed fibre, the benefit of notification would be available to the asse .....

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Member (Judicial) and Mr. V Padmanabhan, Member (Technical) Ms Rinki Arora, Advocate for the Appellants Shri Govind Dixit, AR for the Respondent ORDER Per Archana Wadhwa : Both the appeals are being disposed of by a common order as the issue involved is identical in both the appeals. 2. As per facts on record, the appellant is engaged in the manufacture of optical fiber cables. The dispute in the present appeal relates to the applicability of concessional rate of duty to the imported items, to .....

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s 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 imported optical fibre cable along with other raw materials claiming the classification of the same as falling under Chapter heading 8544.70. Inasmuch as heading 8544.70 is one of the specified entry in notification No. 24/2005-Cus and inasmuch as the said optical fibre were to be used in the manufacture of cables again falling under chapter .....

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tre dated 17.7.2006 the cables manufactured by the appellant from optical fibre were not individually sheathed though in some of the cases they were found to be containing individually sheathed fibre. If they are found to be not containing individually sheathed optical fiber, they would shift their classification from 8544 70 to heading 9001 10, which heading is not a specified heading for the goods in question and not entitled to the benefit of the notification. 5. Based upon the above, further .....

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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 given to the department for use of imported goods in the manufacture of optical fibre cable f .....

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al fibre only and as such, the question of mis-declaration of the said goods and of their final product does not arise. However, on being questioned as to whether they have challenged test report of Telecommunication Engineering Centre, learned advocate fairly agrees that no contest was put to the said report, neither did the appellant applied for retest or got the goods tested from any other test centre so as to rebut the finding given in the test report of Telecommunication Engineering Centre. .....

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he 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 .....

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evenue s action by drawing of samples and sending for test to Telecommunication Engineering Centre. In such a scenario, submits learned DR, extended period of 5 years would be available to the Revenue. He accordingly, prays for rejection of the appeals. 8. We have considered the submissions made by both the sides and have gone through the impugned orders. As regards the imports of the goods, we find that the test report result by the Telecommunication Engineering Centre is very clear and learned .....

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dure set out in the Customs (import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 which is one of the condition of 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, .....

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