TMI Blog2017 (5) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... s classification from heading 8544 70 to heading 9001 10, thus not making the notification applicable. As such, we are of the view that the appellants have wrongly availed the benefit of notification No. 24/2005-Cus. Time limitation - Held that: - the 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 - the longer period of limitation would admittedly be available to the Revenue. Wherever the cable have been found contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral 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 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 heading 8544, the concessional rate of duty was extended to the appellant. It may not be out of place to mention here that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow 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 falling under heading 8544 and have intentionally availed the benefit of notification No. 24/2005 Cus dated 1.3.2005 for the manufacture of goods which are not falling under heading 8544. As such, the appellant has been held to be guilty of willful suppression and mis-statement in respect of classification of their final product, as such, upholding the invocation of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under 8544 70 and have also got themselves registered with the department by following the procedure set out in the Customs (import of goods at concessional rate of duty for manufacture of excisable goods) Rules, 1996 with a malafide intention to avail the benefit of notification . Such malafide intention has come to the surface only with the Revenue s action by drawing of samples and sending for test to Telecommunication Engineering Centre. In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Centre that whereas the cable have not been found to be containing individually sheathed fibre in some of the cases, in others they have been found to be containing individual sheathed fibre. Wherever the cable have been found containing individually sheathed fibre, the benefit of notification would be available to the assessee. However, neither side has been able to make it clear that the demand confirmed by the lower authorities is only in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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