M/S. Agappe Diagnostics Ltd vs Commissioner Of Customs

C/Stay/21612/2014, C/Stay/21615/2014, C/Stay/21617/2014, C/Stay/21616/2014, C/Stay/21618/2014, C/Stay/21619/2014, C/Stay/21621/2014, C/Stay/21620/2014, C/Stay/21622/2014, C/Stay/21624/2014, C/Stay/21625/2014 in C/21441/2014-DB, C/21448/2014-DB, C/21450/2014-DB, C/21449/2014-DB, C/21451/2014-DB, C/21452/2014-DB, C/21454/2014-DB, C/21453/2014-DB, C/21455/2014-DB, C/21456/2014-DB, C/21457/2014-DB

Appeal(s) Involved:

C/21441/2014-DB, C/21448/2014-DB, C/21450/2014-DB, C/21449/2014-DB, C/21451/2014-DB, C/21452/2014-DB, C/21454/2014-DB, C/21453/2014-DB, C/21455/2014-DB, C/21456/2014-DB, C/21457/2014-DB

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-286-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-276-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-277-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-279-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-278-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-280-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-281-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-283-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-282-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-285-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-284-13-14 dated 06/01/2014 passed by Commissioner of CUSTOMS , COCHIN ]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, 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? Yes 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

M/s. Agappe Diagnostics Ltd Agappe Hills,pttimattam P.O,kolenchery COCHIN  683562. KERALA Appellant(s)

Versus

Commissioner of Customs Cochin-CUS CUSTOM HOUSE COCHIN - 682009 KERALA Respondent(s)

Appearance:

G. SUBRAMANIAN ADV C/O. CENTAB, KARIMPATTA RAOD, KOCHI-16 COCHIN  682016. KERALA For the Appellant

Mr. N. Jagadish, Superintendent (AR) For the Respondent

Date of Hearing: 31/03/2015

Date of Decision: 31/03/2015

CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20902-20912 / 2015

Per : ARCHANA WADHWA

After dispensing with the condition of pre-deposit in all the appeals, we proceed to decide the appeals itself inasmuch as the short legal issue is involved. The appellant imported coagulation analyzer and auto analyzer by classifying the same under Customs Tariff Heading 9018 90 19 and cleared the goods at the rates applicable in terms of the said tariff heading read with Notification No.21/2002  Sl. No.357(a). Further, subsequently Revenue noticed that the correct classification of the said product should be under Customs Tariff Heading 9027 80 90 as per HSN Explanatory Notes, which attracted higher rate of duty. Accordingly, show-cause notices were issued to the appellants proposing change in classification and consequently confirmation of demands of duties.

2. The appellant during adjudication as also before Commissioner (A) did not contest the classification but submitted that the demand having been issued beyond the normal period of limitation of six months, as was available during the relevant period, was barred by limitation. On the other hand, the Revenue contended that the provisions of Section 28 of the Customs Act were amended w.e.f. 8.4.2011, enlarging the period of limitation from six months to one year as the show-cause notices have been issued subsequent to amendment of Section 28. The period of one year would be available to the Revenue.

3. As such, the only issue required to be decided in the present appeals is as to whether the period of six months, as was available prior to 8.4.2011 would be applicable or the period of one year, as was available in terms of the amended Section 28 would be applicable. Learned advocate has drawn our attention to Explanation 2 to the said Section 28(10) of the Customs Act, 1962. The same reads as under:

Explanation 2: For the removal of doubts, it is hereby declared that any non-levy, short-levy or erroneous refund before the date on which the Finance Bill, 2011 receives the assent of the President, shall continue to be governed by the provisions of Section 28 as it stood immediately before the date on which such assent is received.

As it is seen from the above, the said Explanation clarifies that the any non-levy, short-levy, or erroneous refund before receiving the assent of the President in respect of Finance Bill , 2011 shall continue to be governed by the provisions of Section 28 as it stood immediately before receipt of the assent. The language of the said Explanation is unambiguous and clearly stating that all the demands which has arisen before the amended Section 28 of the Customs Act would be governed by the earlier Section 28. The unamended Section 28 had admittedly period of six months for raising the demand but in all the present cases, the demand has been raised beyond the period of six months. We are of the view that the demands are barred by limitation.

4. Accordingly the impugned orders are set aside and the appeals are allowed with consequential relief, if any, to the appellants. Stay petition as also appeals gets disposed of in above manner.

(Order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

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