The court emphasized the importance of bona fide declaration and held that the respondent could not be accused of willfully misstating or suppressing facts, leading to the dismissal of the appeal on the ground of limitation.

ORDER :

1. The respondent herein had imported through courier seven cartons of Front End Engineering Package (FEEP) and declared the value of USD 3 million for the aforesaid FEEP. These manuals were required for Purified Teraphthalic Acid (PTA) plant. In the aforesaid FEEP, technical information was contained which was required to engineer, construct, operate and maintain the PTA plant for the production of PTA and sale thereof. In other words, technical information was provided in the form of FEEP for the purposes of procuring, engineering, constructing, operation and maintenance of PTA Plant and sale of PTA anywhere in the world. In the bill of declaration which was filed by the respondent-assessee, the aforesaid goods were classified under Chapter Heading 49.01 and exemption from payment of import duty was claimed as per Notification No. 38/94-CUS dated 01.03.1994.

2. Show cause notice was issued thereafter claiming the extended period of limitation to the effect that there was misdeclaration about the said product and the aforesaid product was covered by Heading 4911.99 in respect of which full exemption from payment of excise duty was not available.

3. The demand in the show cause notice was confirmed after giving an opportunity of hearing to the respondent herein. The matter was taken by the respondent in appeal before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'Tribunal'). The Tribunal has, vide the impugned order dated 06.09.2006, decided the issue in favour of the respondent herein both on merits as well as on limitation thereby holding that the show cause notice was beyond the period of limitation and since there was no misdeclaration, extended period of limitation was not available to the Department. It is this order which is challenged by the Revenue in the present appeal.

4. After hearing the counsel for the parties, we are of the opinion that this appeal is liable to be dismissed only on the ground of limitation as decided by the CESTAT as we are of the considered opinion that it was a case where the extended period of limitation provided under Section 28 of the Customs Act, 1962, could not have been availed by the Department.

5. In this behalf, it would be pertinent to mention that the issue of classification, at the relevant time when the goods in question were imported in June 1994, had been decided by the Tribunal in two judgments, i.e., 'Roto Inks Private Limited v. Collector of Customs' [1990 (47) ELT 398] and 'Tata Consultancy Services v. Collector of Customs' [1991 (53) ELT 452] classifying these very articles under tariff item 49.01. Thus, when the declaration was filed by the respondent, in view of the aforesaid position in law that was prevailing at that time, it was a bona fide declaration and cannot be treated as misdeclaration. No doubt, that in other case, the matter traveled up to this Court and this Court in the case of Commissioner of Customs (General), New Delhi v. Gujarat Perstorp Electronics Ltd. [2005 (7) SCC 118], after straightening the law, remitted the matter back to the Tribunal for fresh consideration.

6. This very judgment was in the knowledge of the Tribunal while deciding the case at hand and is specifically taken note of. The discussion on that basis proceeds as follows:-

“At the time of import, i.e., in June 1994, the law on the subject of import of technical documents had evolved and formulated. The judgments of the Tribunal in Roto Inks Private Limited v/s. Collector of Customs [1990 (47) ELT 398] and Tata Consultancy Services v/s. Collector of Customs [1991 (53) ELT 452] clearly held then that the imported articles were classifiable under the prevailing Tariff Item 49.01. On a reference to the Larger Bench, in August 2000, in the case of Parsrampuria Synthetics Ltd. v/s. Commissioner of Customs, New Delhi reported in 2000 (38) RLT 846 also upheld the ratio in these decisions by holding that the expression 'printed books 'covered' printed materia