BPL LTD. Vs. COMMISSIONER OF CUSTOMS, CHENNAI

JUDGEMENT

(1.) THIS appeal has been filed against Order -in -Original No. 2725/2004 dated 23 -9 -2004 passed by the Commissioner of Customs, Chennai.

(2.) THE impugned order has been passed in pursuance of CESTATs Final Order No. 1540/2003 dated 25 -11 -2003 [2004 (168) E.L.T. 245 (T)]. The terms of the remand are that the Commissioner should give his findings on the applicability of the extended period and consequent effect of quantum on duty demanded and on penalty.

(3.) THE appellants imported insulated electrical cable lengths and cleared the same as patient cables availing benefit of Notification No. 165/86 -Cus. as amended. The condition of the exemption is that the components of ECG machines should be imported for their manufacture. As some of the components imported were sold as warranty spares/replacements, Revenue proceeded against the appellants for demand of differential duty. The first order confirming duty and imposing equivalent penalty under Section 114A of Customs Act was issued on 21 -10 -1997. When the appellants challenged the above mentioned order, the CESTAT passed the final order mentioned supra remanding the matter to the Original Authority. Consequently, the de novo order has been passed by the Commissioner. In the said order, the Commissioner denied the benefit of the said Notification in respect of 31011 Nos. of Single Core, 784 Nos. of 5 core and 982 Nos. of 10 core patient cables imported as components required for the manufacture of ECG machines but used as spares/warranty replacements during the period 1992 -1995. Therefore, he has confirmed the duty demand amounting to Rs. 8,77,124/ - under Section 28(2) of the Customs Act, 1962. The Commissioner in the impugned order has given a clear cut finding that the allegation of suppression of facts and wilful mis -statement on the part of the appellant is well founded and therefore, the extended period under proviso to Section 28(1) of Customs Act, 1962 is available to the department. He did not impose any penalty observing that the department is at liberty to consider initiation of separate proceedings for imposition of penalty. Mrs. Rukmani Menon, learned Advocate who appeared for the appellants urged the following points :