BPL LTD. Vs. COMMISSIONER OF CUSTOMS, CHENNAI

JUDGEMENT

(1.) THE applicants are seeking waiver of pre -deposit of Rs. 2,83,27,528/ - in respect of the three stay applications and a personal penalty of Rs. 2 lakhs. The applicants had imported parts of medical Equipment for manufacture of DC Defibrillators. The imported items had been used by availing exemption in terms of the Customs Notification No. 20/99 -Cus., dated 28 -2 -1999. The applicants utilized the items in the manufacture of final product viz. DC Defibrillators. The Revenue proceeded against the applicant seeking Excise duty on the ground that the said item is used externally for giving shock to the heart patients i.e. to revive the heart. The plea of the Revenue was that the benefit will be applicable only if it is implanted. The applicants contention was that the item can be used both internally and externally. However, the Commissioner, in the Excise proceedings, took the view that the item is not used internally with a Pacemaker and the Notification exempts only such items. The matter was adjudicated before the Tribunal. There was a difference of opinion on this issue. However, the Third Member agreed to dismiss the appeal on the ground that the benefit is not available to the assessees. The matter had been stayed by the Apex Court in Civil Appeal No. 5523/2004 by their Order dated 2 -8 -2005. The Commissioner, in the impugned order, has also denied the benefit on the components imported for availing the benefit of Customs Notification on the same lines as decided by the Commissioner of Central Excise.

(2.) THE learned Senior Counsel submits that the applicants had taken the plea of time bar. It is his submission that there is no ground for invoking larger period as there was no suppression of facts. The Service Manual pertaining to the item along with expert evidence had been placed at the time of clearance of goods. The goods had been examined and found to be eligible for the benefit of the Notification. It is his submission that the larger period in the present case is not invokable and the demands cannot be confirmed on that ground. He prays for waiver on two grounds : -

(3.) THE learned JDR defends the order and relies heavily on the Tribunal ruling in their own case in Excise matter and submits that as they have not pleaded financial hardship, the appellants should be put to terms to safeguard the revenue interest.