TMI Blog2018 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... lar sector i.e. coffee/tea/rubber plantations. It would be said that it is applicable to any sector; the movement of goods are capable of being used in the said sector. Admittedly, some of the machines may be capable of being used other sectors also, however, for the same reason it cannot be held that the exemption will be applicable if the machines are used in other sectors. Such an interpretation would lead to mis-construction of the intent of the Notification. It is seen that the exemption Notification is applicable to purely a particular sector i.e. coffee/tea/rubber plantations. It would be said that it is applicable to any sector; the movement of goods are capable of being used in the said sector. Admittedly, some of the machines may be capable of being used other sectors also, however, for the same reason it cannot be held that the exemption will be applicable if the machines are used in other sectors. Such an interpretation would lead to mis-construction of the intent of the Notification. Extended period of limitation - Held that:- The fact of sale or use in other sectors was never disclosed to the Department. It is only after the department conducted an enquiry the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order cannot be reopened unless its correctness is questioned through an appeal. They have also relied upon the following cases. (i) Priya Blue Industries Ltd. vs. CC; 2004 (64) RLT 321 (SC) (ii) Voltas Ltd. Vs Commissioner of Central Excise and Custom; 2006 (202) ELT 355 (T). (iii) Sree Digvijay Cement Co. Ltd. Vs CCE-1991 (52) ELT 631 (T). (iv) Doothat Tea Estate Kanoi Plantation Pvt. Ltd. Vs CCE, shilling-2001 (135) ELT 386 (T). (v) La Opala RG Ltd. Vs Commissioner of Central Excises JSR; 2002 (149) ELT (T). (vi) Pushpam Pharmaceuticals Company Vs CCE; 1995 (78) ELT 401 (SC). (vii) Tamil Nadu Housing Board Vs CCE, Madras-1994 (74) ELT 9 (SC). (ix) CCE, Kanpur Vs U.P. Lamination 1997 (89) ELT (SC). (x) Alocbex Metals Ltd- 2003 (153) ELT 241(SC). 3. The appellants also contended that there was no suppression of fact either in the description of the goods or in the valuation of goods. Therefore, extended period cannot be invoked. The learned Commissioner has totally ignored the law as laid down by the Hon ble Apex Court. They relied upon the following cases (i). Pushpam Pharmaceuticals Company Vs CCE 1995(78)ELT 401(SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bangalore 2000(41) RLT 138 (T-LB) (v). Shri Harakchand Dharmaji Vs CC Madras 1996(88) ELT 764 (vi). Dunlop India Ltd MRF LTD Vs UOI Others 1983(13) ELT 1566(SC) (vii). AK Reporters Vs CC Chennai 2003(157) ELT 153(T) (viii). CCE Chennai Vs Q Max Test Equipment Pvt Ltd 2003(159) ELT 665(T) (ix). Mentha Allied Products Ltd Vs CCE Meerut-1999(112)ELT 600(T) (x). Karl Storz Endoiscopy India (Pvt) ltd Vs CCE New Delhi 2000(123) ELT 1071(T) (xi). Cougar International Pvt Ltd Vs CC Cochin 1984(16) ELT 310 (T) (xii). Farida Classic Shoes Ltd Vs CCE 1999(83) ECR 869(T) (xiii). Fertilizer Corporation of India Ltd Vs CCE Patna 1987(30) ELT 507(T) (xiv). Camphor Allied Products Ltd Vs CCE 1999(113) ELT 516(T) 6. The appellants contended that the Hon ble Apex Court and other courts have held that the wording in an exemption Notification have to be construed keeping in view the object and purpose of the exemption and while interpreting an exemption Notification, the same should not be read in a narrow manner as to defeat the object of the Notification. They relied upon the following cases: (i). UOI Vs Wood Papers Ltd 1990(47) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts contended that when the issues relate the interpretation of Notification, penalties cannot be imposed and they relied upon following case laws: (i). commissioner of Customs Mumbai Vs A. Shankar Rao 2002(149) ELT 387(T) (ii). Goenka Woollen mills Ltd Vs CCE Shillong 2001(135) ELT 873(T) (iii). Vadhera Luminaries Vs Commissioner of C.Ex Delhi-1 2004(166) ELT 211(T) 9. The appellants contended that the Department has not placed on record any evidence to show that the impugned goods have not properly imported or there was a misdeclaration in terms of value and description of goods. Further, no evidence has been placed on record to the fact that the appellants have done or omitted to do some act, which act has rendered the said goods liable for confiscation. In the absence of any such evidence, the imposition of penalties on the Directors and the appellant is bad in law. They relied upon the following cases: (i). Lalson Vs CC Bombay 1999(109) ELT 709(T) (ii). KK Manufacturing Co Vs CC Bombay 1997(91) ELT 635(T) (iii). Dass Photo Electronics Vs CC New Delhi 1987(30) ELT 988 (T) (iv). Sear Cargo services Vs CC New Delhi 2001(130) ELT 960(T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by the importer, that in the absence of specific condition in the Notification; the impugned equipment could be used in gardens, landscaping; cleaning of bikes or even control of Chickegunya, once it is proved that the same can be used in coffee/tea/rubber plantations; cannot be accepted. This appears to be a blatant mis-conception on the part of the importer which would make a wrong interpretation in the light of the fact that majority of the imports are used in totally unrelated sectors. The contention of the appellants that they have supplied a major part of the imports to the specified sectors is incorrect and is not supported by documentary evidence. 13. The Departmental Representative further stated that the appellants are incorrect in interpreting the decision of the Hon ble Supreme Court in Commissioner of Customs (Preventive), in M/s Priya Blue Industries 2004(172), ELT, 145 (SC) to their case. It is very clear that the Hon ble Supreme Court has stated that once an Order of Assessment is passed, duty would be payable as per that order unless that Order of Assessment has been reviewed under Section 28 and/or modified in an appeal. In the instant case, the notice for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings to recover duty which was not paid because of the exemption Notification. The Departmental Representative submitted that the proceedings initiated against the appellants in issuing a SCN which culminated in the adjudication order are not vitiated by law. 15. The learned Counsel for the appellants replying to the contentions submitted that extension of exemption by any Notification involves two levels of interpretation. At the time of allowing the exemption at the time of clearance of goods, it is to be seen whether the goods are capable of being used in that particular sector or not. Once this threshold is passed, a liberal interpretation requires to be given in the second stage as to whether the same are really used in that sector or otherwise. 16. Heard both the side and perused the records of the case. 17. The appellants are traders engaged in the import and trading of high tech implements/ appliances meant for use in agriculture, horticulture, forestry, gardening plantations etc. The appellants have imported said machinery like Sprayers, Power Weeders, Tea Pruners Mist Blowers etc. declaring the same to be used in coffee/tea/rubber plantations and availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division, 1999 (109), ELT, 787 (Tri.). We conclude that the Notification being sector specific the contentions of the appellants are not acceptable. We hold that the Notification is to be strictly interpreted in the absence of any ambiguity in the wording of the same. Coming to the other contentions of the appellants that the SCN and the adjudication order are bad in law in view of the fact that the assessments were not final and have not been appealed against. We find force in the contention of the Departmental Representative that the SCN has been issued by invoking Section 28 and therefore, it does not stand any legal infirmity in view of R.K.Chemicals, 1993 (67), ELT 79 (BOM). On the same reason, we are not inclined to accept the claim of the appellants that the SCN is time-barred as the machinery were sold or used to other sectors contrary to the declaration given at the time of import. The fact of sale or use in other sectors was never disclosed to the Department. It is only after the department conducted an enquiry the facts come to the light. There is a clear suppression of the material fact. Therefore, we find that extended period is correctly invoked. 18. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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