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2019 (5) TMI 612 - CESTAT AHMEDABADTime limitation of issuance of SCN - the period of importation of subject goods, i.e. High Allumina Balls was during period July, 2007; whereas, the notice was issued on 15/07/2008 - fraud/wilful suppression of facts or not - Change in classification - HELD THAT:- The said notice was issued beyond the period of 6 months from the date of filing of the Bill of Entry, and was issued under the Section 28 of the Act. So far as Section 28 of the Act is concerned, the statute mandates that in case of non-payment or short payment of the duty amount, the department should issue Show Cause Notice within 6 months from the relevant date. The proviso clause appended to section 28 ibid provides that in case of non levy, short levy of duty, etc., on account of collusion or willful mis-statement or suppression of facts by the importer, the period of “6 months” should be read as “5 years”. In the instant case, it is not the case of Revenue that non-payment/ short-payment of duty by the appellant was owing to the reason of misstatement, suppression of facts, etc., in as much as the initial Show Cause Notices issued by the department clearly indicated the description of the goods imported by the appellant, classification of such goods under the CTH, and claim of exemption provided for such goods. Thus, under the circumstances of the case, the subsequent Show Cause Notice dated 15/07/2008 issued beyond the normal period should not stand for judicial scrutiny and accordingly, proceedings initiated based thereon cannot be sustained as barred by limitation of time. Change in classification of the subject goods - HELD THAT:- Since classification made in the assessment order was not proposed in the Show Cause Notice, the said order cannot go beyond the scope and ambit of the Show Cause Notice and should only confine to the findings, whether the proposals made in the Show Cause Notices for different classification should sustain or not - Since the Adjudicating Order had entirely changed the classification of the product, as proposed in the Show Cause Notice from 69149090 to 69099090, without issuing any notice to the appellant, the differential duty confirmed under the changed classification should also not stand for judicial scrutiny. Appeal allowed - decided in favor of appellant.
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