The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) New Delhi has held that deeper tariff concessions under Customs Notification are available unconditionally to all goods under tariff heading 851190 imported from the Association of Southeast Asian Nations (ASEAN) countries.
The appellant, M/S De-Diamond Electric India Pvt. Ltd., imported “Magnetic Iron Centre Copper/Centre Core Assembly” from Thailand through 79 bills of entry based on self-assessment. During the post-clearance audit, the audit team held that the imported goods are correctly classifiable under the 85119000 Customs Tariff and the benefit of exemption of Notification No. 46/2011-CUS (Sl. No. 1319) is not available to the imported goods and demand differential duty. The Commissioner, confirmed the duty as proposed in the show cause notice, but refrained from imposing any penalty upon the appellant. Aggrieved, the appellant filed an appeal before CESTAT.
The counsel for the appellant by relying on the judgment of the Supreme Court in the case of ITC Ltd. V CCE, Calcutta submitted that self-assessment is also an order of assessment and is subject to appeal before the Commissioner (Appeals), the Revenue has not appealed against this appellant’s self-assessment and, therefore, it cannot raise a demand under Section 28. The Tribunal by relying on the decision of the Supreme Court in Canon India observed that Section 28 itself gives the power of reopening of assessment to the proper officer.
The Tribunal further observed that the appellant is prima facie, entitled to the benefit of under Sl. No. 1335 of Notification No. 46/2011-CUS because the exemption is available unconditionally under the notification to all goods falling under 851190 imported from ASEAN countries and the disputed goods were imported from Thailand. But considering the several amendments which may have been made to the notification during the period the 79 Bills of Entry were filed, the Tribunal finds it necessary to remand the matter to the original authority to determine the extent to which the exemption is available in respect of each.
The Coram of Mr. Justice Dilip Gupta, President Hon’ble Mr. P.V. Subba Rao, Member (Technical) has held that “the appeal is partly rejected by upholding the classification of the imported goods and partly allowed by allowing the benefit of notification no. 46/2011-cus (S.No. 1335). The impugned order is modified accordingly and the matter is remanded to the original authority for re-determining the duty liability accordingly”.
Mr. Ved Prakash Batra, CA appeared for the appellant and Mr. Sunil Kumar appeared for the department.
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