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2019 (5) TMI 1034

in respect of those parts which the appellant, after import, diverted to their spare parts division. HELD THAT:- Having imported the parts for the specified end-use, assessee has, thereafter, diverted them for some other use. Clearly, such diversions are not covered by the exemption notification. There is no scope for such diversion or even of loaning of the goods for some other purpose with the understanding that a corresponding quantity of the goods will be returned after some time. Therefore, as far as the exemption notification is concerned, they are NOT entitled to the benefit of exemption notification on such quantity of the goods as were diverted from OE to their spare parts division. The appellant’s contention that they were n .....

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ompliance of the conditions of the customs notification and clandestine clearance of OE parts to their spare parts division - penalty imposed on the appellant under Sec.112 (a) & (b) for non-compliance of the customs notification and clandestine removal of parts reduced. Appeal allowed in part. - Appeal Nos: C/513-514/2009 - A/30524-30525/2019 - 16-5-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Present for the Appellant: Shri Bipin Verma, Advocate Present for the Respondent: Shri N. Bhanu Kiran, Authorized Representative. ORDER Per: P. Venkata Subba Rao. 1. These appeals are filed against Denovo Order-in-Original No. 13/2009- Adjn-Cus dated 31.03.2009. 2. The original show cause notice in .....

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nd a much higher level of exemption if the parts are imported as Original Equipment for manufacture of the vehicles. Appellant imported some goods as meant for spare parts division applying appropriate rate of customs duty. They also imported parts as OE on which they claimed a much higher level of exemption. 5. Investigation by the department revealed that during the period 23.05.1990 to 31.12.1994, the appellant had diverted the goods which were imported as OE parts to their spare parts division under transfer note called Spare Parts Transfer Note (SPTN). Admittedly, this was done not in all cases but in some cases only which, according to the learned counsel for the appellant, was about 1% or less. He would further submit that in some ca .....

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representing customs duty. (4) As is evident from the case, there were only two types of imports viz., (i) used as original equipment by their manufacturing division and (ii) import for use as spare parts by their spare parts division. In the first case, the parts will go straight in the manufacture of the vehicles and no amount is ever collected from the buyer of the vehicle as representing customs duty paid on the parts used in the manufacture of the goods. As far as the spare parts division is concerned, it sells spare parts at the listed price. It does not charge a separate customs duty from the customers. The import price, customs duty, expenses, their profit etc., all get incorporated into the invoice price which they charge. Therefor .....

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amp; Co. and others (Civil Appeal No. 3327/2007). It has been held that an exemption notification being an exception to the general rule must be viewed strictly against the person claiming the exemption. In case of any doubt whether the benefit is available or otherwise, the benefit of such doubt should be in favour of revenue and against the assessee. Therefore, regardless of what decisions were taken at various points of time, including in this case, the law now settled is that any exemption notification must be construed strictly. In this case, eligibility of exemption notification was not in doubt at the time of import. The exemption was available for a specific end-use. Having imported the parts for the specified end-use, assessee has, .....

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amount in their cost calculations. Clearly, there is no evidence that the customer was charged some amount as representing customs duty. Section 28B does not provide for recovery of any amount included in the cost calculation as element of Customs Duty. Therefore, the demand on this count is not sustainable and needs to be set aside and we do so. 9. A small quantity of the goods valued at ₹ 2,10,000/- were confiscated by the impugned order under Sec.111(o) of the Customs Act for violation of the conditions of the customs notification. An option to redeem the same has been given under Sec.125 by paying redemption fine of ₹ 25,000/- only. We find no reason to interfere with either confiscation or the reasonable amount of fine imp .....

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