RELIANCE COMMUNICATIONS INFRASTRUCTURE LTD. Vs. C.C. (I)

JUDGEMENT

(1.) THE appeals are directed against Order -in -original No. 17/09 CC(I) JNCH, dated 19 -1 -2009 passed by the Commissioner of Customs (Imports), JNCH, Nhava Sheva.

(2.) Vide the impugned order the ld. adjudicating authority has classified the optical fibre cables imported by the appellant under CTH 9001 and denied the benefit of notification No. 24/2005 -Cus, dated 1 -3 -2005 claimed by the appellant, M/s. Reliance Communication Infrastructure Limited (RCIL in short) by classifying the product under CTH 8544. Consequently he has confirmed a differential duty demand of Rs. 2,68,50,476/ - along with interest thereon under the provisions of Sections 28 and 28AB of the Customs Act, 1962. Further he has confiscated the Optical Fibre Cables (OFCs in short) imported by the appellant valued at Rs. 21.76 Crore under Sections 111(m) and 111(o) of the Customs Act and has given an option to redeem the same on payment of a fine of Rs. 5 crore apart from imposing an equivalent amount of penalty on the importer under Section 114A of the said Customs Act. He has also imposed a penalty of Rs. 20 lakhs on Shri Narendra Patil, General Manager (Taxation) of the appellant firm under Section 112(b) of the said Customs Act. Aggrieved of the same, the appellants are before us. The facts relevant to the case are briefly as follows. Acting on intelligence that M/s. RCIL was importing optical fibre cables (OFCs in short) through various ports, namely, Nhava Sheva; ACC, Sahar; Kandla CFS and Mundra by mis -classifying the same under CTH 85.44 and claiming the benefit of Notification No. 24/2005 -Cus., dated 1 -3 -2005, investigation was initiated into the imports of OFCs by RCIL The investigation revealed that the appellant had imported OFCs under 35 Bills of Entry during April, 2003 to January, 2006 from different overseas suppliers. It was further noticed that the appellant had claimed exemption from payment of basic customs duty on OFCs under Notification No. 24/2005 -Cus. in respect of 10 bills of entry during the period March, 2005 to January, 2006, by wrongly classifying the goods under CTH 85.44. On completion of investigation, a show cause notice dated 8 -2 -2007 was issued to the appellant proposing re -classification of the goods under CTH 90.01 and demanding differential duty of Rs. 2,68,50,476/ - along with interest thereon. The notice also proposed to confiscate the goods under Sections 111(m) and 111(o) of the Customs Act and penalties on the appellant importer and on Shri Narendra Patil, General Manager and Shri Anil Kumar Singh, Vice President & Head (Exim Commercial). The said notice was adjudicated vide the impugned order and the proposals in the notice were confirmed. Hence the appeals before us. The ld. Counsel for the appellant made various submissions which are summarised as below: - -

(3.) THE ld. special consultant appearing for the Revenue made the following arguments: - -