TMI Blog2018 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorization granted by the Development Commissioner / STPI authorities and a certificate is issued by STPI stating that the goods are required to be installed or used in the unit and (b) the import is authorized by the Standing Committee. In the present case, both the conditions have been fulfilled by the appellant and once the Committee has authorized the import, then, in our opinion, the Customs Department later on cannot question the benefit under the Notification. Extended period of limitation - Held that:- The Department has not brought any evidence on record to show that there was an element of fraud, collusion or any willful mis-statement or suppression of facts on the part of the appellant justifying the invocation of extended period of limitation - Since all the goods have been procured by obtaining necessary permission from STPI as well as Customs authorities and the Customs was fully aware of the import and therefore it does not lie in the mouth of the Department now to contend that the appellants, hence suppressed the material facts and are not eligible for the benefit of the Notification - entire demand is barred by limitation. Appeal allowed - decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the STP authorities. The appellant also submitted an application dt. 06/04/2004 to STPI along with Proforma Invoice of their supplier requesting for necessary approval to procure the Modular Work Station (Lato Panel) from M/s. Anagram Systems, Noida, SEZ, Noida for a value of Euro 1,43,290.46. The proforma invoice of the supplier described the goods as Modular Workstation and accessories and the same was also proposed to be used along with the existing workstation. Thereafter vide letter 08/04/2004, the Director, STPI issued the necessary approval for procurement of Modular Workstation which was duly authorized by Standing Committee of the Department of Electronics. Further the Director, STPI also attested the Proforma Invoice and thereafter the appellant vide letter dt 08/04/2004 submitted a request to Deputy Commissioner of Customs, Bangalore for issue of procurement certificate to enable the appellant to effect purchase of the workstation and accessories without payment of duty and the Deputy Commissioner issued the necessary procurement certificate on 13/04/2004 authorising the appellant to obtain duty free goods against proforma invoice and thereafter the appellant sent th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms and after importation, the said goods have been installed at the appellant's premises. He further submitted that the notification, inter alia, exempt a number of items like uninterrupted power supply system, pollution control equipment, quality assurance equipment, storage systems, special racks for storage, modular furniture and parts thereof, computer furniture, anti-static carpet, teleconference equipment, servo control system, panels for electrical, air conditioners and security systems and the spares and consumables for the above items. He also submitted that the exemption in the notification is by description and not by chapter heading, hence it is eligible to the benefit of notification irrespective of its classification in the Customs Tariff Act. He also submitted that once the modular furniture and parts thereof are covered by description for exemption under the notification, the same should be allowed without any further interpretation. It is his further submission that there is no statutory definition for the expression modular furniture and the modular furniture in commercial sense certainly covers the items procured by the appellant as the modular workstation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of capital goods in the Foreign Trade Policy, 2004 which covers, inter alia, a plant required for manufacture or production of goods or for rendering services. He further submitted that the Tribunal in the case of Wipro Ltd. Vs. CC [2004(173) ELT 207 (Tri. Bang.)] and Novell Software Development (I) Ltd. Vs. CC [2006(194) ELT 444 (Tri. Bang.)], has interpreted the expression 'capital goods' used in the Notification in a very wide sense. The learned counsel also placed reliance on the decisions of the Tribunal in the case of Cognizant Techno Solutions India P. Ltd. Vs. CC(AP Admn.), Kolkata-I [2012(286) ELT 77 (Tri. Kol.)] wherein the Tribunal has held that the mineral fibre sound absorbing sheet, cut to sizes and used as false ceiling is a modular furniture and entitled to benefit of exemption under the Notification No. 140/1993-Cus. 4.3. Another submission of the learned counsel is that there cannot be a demand of duty as the goods are still lying in the bonded warehouse of the appellant and until and unless these capital goods are either cleared for home consumption or removed in contravention of Section 71 of the Customs Act, no duty can be demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods considering the same as modular furniture and have availed the benefit of Notification No.52/2003-Cus. Further we find that in the proforma invoice and sale invoice and Bill of Entry, they have described the goods as parts of modular furniture. Further we find that the STPI authorities have also permitted the import of goods under Customs Notification No.52/2003-Cus after satisfying themselves that the goods were eligible for duty free import and necessary certificate was also issued. Further we find that for availing exemption under Notification No.52/2003-Cus dt. 31/03/2003, two conditions need to be satisfied (a) STPI unit is set up as per the authorization granted by the Development Commissioner / STPI authorities and a certificate is issued by STPI stating that the goods are required to be installed or used in the unit and (b) the import is authorized by the Standing Committee. In the present case, both the conditions have been fulfilled by the appellant and once the Committee has authorized the import, then, in our opinion, the Customs Department later on cannot question the benefit under the Notification. An identical issue arose in the case of DSL Software Ltd. (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority has blindly invoked the longer period without any reason. We also find that the goods are held liable for confiscation under Section 111(0) of the Act. This is not correct Section 111(0) of the Customs Act will come into effect only when the post importation conditions of exemption Notification are not fulfilled. In other words, Section 111(0) is only for exempted goods. When the Department feels that the exemption is not applicable to the impugned goods, Section 111(0) cannot be invoked at all. The demand can be made only under Section 28. It is clearly seen that no ground exists for invoking the longer period. Hence all the demands are clearly time barred. 6.2. Further we find that in the case of Cognizant Techno. Solutions India Pvt. Ltd. cited supra, the Kolkata Tribunal held that mineral fibre sound absorbing sheet, cut to sizes and used as false ceiling, is a modular furniture and is entitled to the benefit under Notification No.52/2003 and in the present case, the goods procured are in the nature of connecting parts between the two workstations. Therefore it can be considered as parts of modular furniture only and the benefit of notification can be e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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