Commissioner Of Customs And Service Tax ... vs American Online India Pvt Ltd

[Arising out of Order-in-Appeal No. 7-2006-Cus. Adjn.(Commr) dated 01/03/2006 passed by CC, Bangalore]

[Arising out of Order-in-Appeal No. 17-06-Cus. Adjn.(Commr) dated 25/04/2006 passed by CC, Bangalore]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Customs and Service Tax BANGALORE-CUS NULL C.R. BUILDING, QUEENS ROAD, P.B.NO. 5400, BANGALORE, - 560001 KARNATAKA Appellant(s)

Versus

AMERICAN ONLINE INDIA PVT LTD 6TH, 7TH & 8TH FLOOR, EXPORER BLOCK, ITPL WHITEFIELD ROAD, BANGALORE Respondent(s)

WINPHORIA NETWORKS INDIA PVT LTD SALARPURIA SUPREME, NO92/3, MUNEKOLALU VILLAGE, OUTER RING ROAD, MARATHALLI BANGALORE Respondent(s)

Appearance:

Shri Mohd. Yousaf, Addl. Commissioner(AR) Shri Pakshi Rajan, Asst. Commissioner(AR) For the Appellant

None For the Respondents

Date of Hearing: 10/09/2015

Date of Decision: 10/09/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21896-21897 / 2015

Per : ARCHANA WADHWA

Both the appeals filed by the Revenue against the orders of the Commissioner are being disposed of by a common order as the issue involved is identical.

2. We have heard learned ARs appearing for the Revenue. Nobody appeared for the respondents.

3. As per facts on record, the respondents are 100% EOU and imported certain capital goods for use in the said 100% EOU under the claim of Notification No.52/2003-Cus. dt. 31/03/2003. The said benefit of exemption notification was extended to the respondents and the goods were cleared. However, thereafter the Revenue entertained a view that the items were not entitled to the benefit of the notification and raised the demands. The said demands were paid by the respondents along with interest.

4. In the above scenario, the Commissioner observed that a lenient view is required to be taken inasmuch as party has voluntarily paid the duty along with interest and as such, the proposal to confiscate the goods or to impose penalty is not justified. Accordingly he neither confiscated the goods with an option for redemption fine nor imposed any penalty.

5. Revenue is aggrieved with such non-imposition of redemption fine and penalty and has accordingly filed the appeals.

6. We find that there is no contravention by the respondents inasmuch as claiming of an exemption notification at the time of import of the goods cannot be held to be with any mala fides. If the notification was not available to the respondents, the Customs officer was within his right to deny the same at the time of import itself. However the respondents were allowed to clear the goods under the claim of notification. As such, we find force in the reasoning of the Commissioner that it is not a case of any mala fide requiring confiscation of goods or imposing any penalties.

7. Learned AR fairly brought to our notice another decision of the Tribunal, in identical circumstances, in the case of Robert Bosch India Ltd. , wherein vide Final Order No.26544/2013 dt. 06/09/2013, the appeal filed by the Revenue was rejected.

8. In view of the foregoing, we find no merits in the Revenues appeals. Both the appeals are rejected.

(Order pronounced and dictated in open court)

ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja.

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