TMI Blog2017 (11) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the proper Customs Authority in charge of assessment to apply the provisions of Section 28 of the Act. It is not open to the Revenue to resort to Rule 8 to demand and recover customs duty for earlier period, beyond five years. The demand proceedings in the present case is not under Section 28 of the Customs Act. This is under Rule 8 of 1996 Rules. In respect of this appellant, a five year demand on the very same issue has been issued invoking Section 28. The notice was made answerable to the jurisdictional customs officer at the port of import. In such situtation, we note that another proceedings, for earlier period, cannot be initiated invoking Rule 8 by the central excise officer. In the present proceedings, the central excise officer did not exercise his powers, if any, under Section 28 of the Customs Act. Such powers were admittedly available with the Assessing Officer of Customs at the port of import. Appeal allowed - decided in favor of appellant. - Customs Appeal No.50370/2017(DB) - C/A/58007/2017-CU[DB] - Dated:- 22-11-2017 - Shri S. K. Mohanty, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri J.P. Kaushik, Advocate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... switches. Sl.No.112 of notification no.25/99-Cus mentions parts of switches. (b) The show cause notice cannot be issued by the Asstt. Commissioner incharge of the manufacturing unit. There is no jurisdiction when the assessment of imported goods were made by the Customs Officers in the port of import. In fact, the demand made by the show cause notice issued by DRI was made answerable to the Addl. Commissioner of Customs (Adjudication), Import and General IGI Airport, New Delhi. Based on the same set of allegations, the present show cause notice was issued and was adjudicated by a central excise officer, who is not competent to decide the exemption on imported goods, which is the role of the assessing officer at the port of import. Reliance was placed on the decision of the Hon ble Karnataka High Court in the case of Molex India Ltd. 2015 (317) ELT 250 (Karnataka). (C ) Exemption notification no.25/99-Cus is subject to condition and procedure, as prescribed in 1996 Rules. All the procedure, as mentioned in Rules 3, 4 and 7 have been followed properly by the appellant. All records were subjected to audit and verification by the officers from time to time. The departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an adjudication proceedings are valid on the question of jurisdiction as contested by the appellant. The present show cause notice dated 13.12.2013 was issued by the Dy. Commissioner of Central Excise Service Tax, LTU, New Delhi. The said Dy. Commissioner is having jurisdictional control for central excise on the appellant s unit. The appellants have executed bond in pursuance of the conditions of 1996 Rules. However, we note that the concession for customs duty as claimed by the appellant was extended upon assessment at the time of import by the officers of Customs at the port of entry. The present proceedings are to deny the exemption, due to violation of post-import conditions. The officer having central excise jurisdiction over the manufacturing unit invoked the provisions of Rule 8 to demand and recover customs duty by denying the exemption initially allowed upon assessment at the time of import by the competent officer of customs. In other words, the assessment done by the Customs Officers at the time of import is varied by invoking Rule 8 of 1996 Rules by central excise officers, in whose jurisdiction the appellant s unit is falling. We note that such dual jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riation of the said assessment has been carried out by the central excise officer having jurisdiction on the unit of the appellant. The Revenue defended such demand for the second time by the central excise officer on the ground that there is a violation of condition, post-importation and the bond executed by the appellant empowers the invocation of Rule 8 by the jurisdictional central excise officer to demand customs duty. It that be so, we fail to appreciate as to the need for demand under Section 28 for five years as issued by DRI answerable to the Add. Commissioner of Customs in the port of import where the goods were initially assessed. 9. It is apparent and clear that show cause notice issued by the DRI correctly invoked the jurisdiction of the proper Customs Authority in charge of assessment to apply the provisions of Section 28 of the Act. It is not open to the Revenue to resort to Rule 8 to demand and recover customs duty for earlier period, beyond five years. 10. Regarding the reliance placed by the Revenue on the decision of the Apex Court in Gujarat Ambuja Exports Ltd. (supra) to justify action under Rule 8, we note that the Apex Court was not examining the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said decision was confirmed by the Hon ble Supreme Court in 2015 (326) ELT A 184 (SC). 13. Ld.AR for Revenue contended that the retrospective amendment carried out in 2011 will cover the situation as the Dy. Commissioner of Central Excise has been notified as proper officer under Section 28. As already noted, the demand proceedings in the present case is not under Section 28 of the Customs Act. This is under Rule 8 of 1996 Rules. In respect of this appellant, a five year demand on the very same issue has been issued invoking Section 28. The notice was made answerable to the jurisdictional customs officer at the port of import. In such situtation, we note that another proceedings, for earlier period, cannot be initiated invoking Rule 8 by the central excise officer. In the present proceedings, the central excise officer did not exercise his powers, if any, under Section 28 of the Customs Act. Such powers were admittedly available with the Assessing Officer of Customs at the port of import. 14. In view of the above analysis, we find the impugned order is not legally sustainable on more than one ground. Accordingly, the same is set aside and the appeal is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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