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TMI Blog2019 (2) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... that the batteries cannot be considered as part of mobile handsets and phones, whereas the effect of Rule 8 and other relevant Rules of the aforesaid 1996 Rules was very clear that, unless the imported goods are used in the 'manufacture' of the excisable goods, the importer is not entitled for the concessional rate of customs duty. 9. There is neither any finding of the Tribunal in this regard as to how the batteries in question were used in the manufacture of handsets or not, nor any discussion on the applicability of Rule 8 quoted above is made, which goes to the root of the matter. 10. Therefore, in our opinion, the impugned order of the learned Tribunal cannot be sustained and the matter deserves to be remanded back to the learned Tribunal for deciding the appeal again on merits, in accordance with law." 2.1 Appellants are manufacturers of mobile handsets and similar phones. They imported batteries to be used for manufacture of mobile handsets and similar phones for availing concessional rate of duty under Notification No.21/2005 dated 1.3.2005 superseded by Notification No.23/2010 dated 27.2.2010. 2.2 As required by the Notification, they executed Bond bearing Sl. No.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove at (ii) at such rate as in force at the time of being levied by the Central Government from the day of import of the said goods till the date of payment of duty demanded above. (iv) I order for recovery of the above demanded duties of Customs and Interest against import of Batteries under the Customs (IGCRDMEG) Rules, 1996, by enforcing the Bond bearing Sl. No.06/2009-10 dated 30.06.2009 executed for an amount of Rs. 20,00,000/- if the same is not paid." 2.8 Aggrieved by this order, appellants filed appeal before the Commissioner (A), who vide his Order-in-Appeal No.235/2012-CE dated 22.8.2012 upheld the order of the adjudicating authority. 2.9 Aggrieved, they filed appeal before the Tribunal. Earlier Tribunal vide its Final Order NO.21019/2014 dated 23.6.2014 allowed the appeal of the appellants and set aside the demand of Customs duty. Consequently, the interest and penalties were also set aside. 2.10 Against this order, Revenue filed an appeal before the High Court and High Court has remanded this matter back to Tribunal for the consideration as stated in para 1 above. 3. We have heard Shri Raghavendra, Advocate for the appellant and Shri K. Murali, AR for the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same premises and used in completion of the manufactured goods viz. mobile and other phones, hence, the benefit of exemption should not be denied to them. 3.2 Arguing for the Revenue, learned AR submitted that:- (i) Issue of jurisdiction has been effectively been held in favour of the Revenue and by the High Court and after considering Rule 8, High Court has remanded the matter back to this Tribunal for consideration of the issue on merits. (ii) On the issue of considering batteries as part and components of mobile phones and other phones, he read from Order-in-Original to state that: "15. The assessee has argued that there was no mis-declaration as all the facts were declared to the Department which could have verified the facts. AT the time of application, it was declared that the Batteries were imported for manufacture of mobile handsets and cellular phones. The Customs Rules, 1996 permit only those goods required for manufacture of excisable goods. Since it was declared that the goods are required for manufacture, Annexure-III was issued so as to facilitate import. Once it was known that the battery is not a part, component or accessory of mobile handset at the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has applied for import at concession of items to their factory at No.26-H, Veerasandra Industrial Area, Hosur Road, Bangalore - 560 100, the Bills of Etnry indicate another address of unit i.e., No.10-14, KSSIDC Industrial Estate, Veersandra, Hosur Road, Bangalore. I find that the registration under Customs (IFCRDMEG) Rules, 1996 is accepted and Bond/Bank Guarantee executed for a particular unit. Rule 4 specifies and allows import for use in their factory i.e., the registered premises. There is no provision for sending the goods on job work as well under the Rules. Rule 8 of Customs (IGCRDMEG) Rules, 1996 specifies that if goods imported are not used by the manufacturer for intended purpose, then the duty foregone at the time of import needs to be recovered along with interest. It is seen that a manufacturer registered has no option to divert or change any address as there is no scope for such amendment in the Customs (IGCRDMEG) Rules, 1996, nor remove the said imported duty free goods to job work. Therefore, the assessee argument that correction carried at in the Bills of Entry would correct/regularize the violation cannot be accepted. Further, there is no provision f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentially parts and accessories of the mobile phones and the benefit of exemption under Notification 21/2005 dated 1.3.2005 is admissible to them. It is also observed that benefit of exemption has been allowed by the assessing officer on the basis of certificate given in Annexure -III certifying that the said batteries were part, component of mobile phones. Once having held that these batteries were part, component of mobile phones and used in manufacture of said mobile phones, Revenue could not change its stand without any justifiable reason in subsequent proceedings. 5.3 On the second issue, we find that the Notification No.21/2005 itself is admissible on the basis of the certificate given by the jurisdictional officer and in terms of Bond executed before him. When the certificate was issued for a particular premises and a Bill of entry filed indicating some wrong address of the same person, the error in mentioning address cannot be anything but a clerical error. Because the certificate indicating the correct address was part of the assessment documents. The error in address subsequently been rectified also. It is not the case of the Department that the goods were not received i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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