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2024 (1) TMI 471 - CESTAT AHMEDABAD100% EOU - confirmation of demand and appropriation of the amount of duty and interest already paid and in addition, equal amount of penalty was also imposed - issuance of SCN as per proviso to sub-section (2) to Section 28 of CA - HELD THAT:- Despite the fact that appellant did not have the EPCG license and they got their 100% EOU de-bonded without payment of duty, therefore it will be well within the knowledge of the appellant that duty is payable and they avoided to pay the duty. Therefore, it is clearly a malafide on the part of the appellant. As regards the submission of the learned Counsel that their case is covered by proviso to sub-section (2) to Section 28 and show cause notice cannot be issued, it is observed that the provision for non-issuance of show cause notice is applicable only when the assessee paid the duty and interest and informed in writing to the department. Whereas, in the present case, firstly the extended period was informed on the ground that there is suppression of facts and malafide on the part of the appellant and secondly, the appellant have not declared to the department that they want to close the case on payment of duty and interest and therefore, the appellant is not entitled for relief as provided under sub-section (2) of Section 28 of the Customs Act, 1962. However, as the appellant have admittedly paid duty and interest but the option for payment of reduced penalty under sub-section (5) of Section 28 of Customs Act has not been extended either by the Adjudicating Authority or by the Commissioner (Appeals) therefore, only for limited purpose of option for reduced penalty in terms of sub-section (5) of Section 28, the matter needs to be remanded. The Adjudicating Authority may reconsider the redemption fine imposed against the confiscation of capital goods. As regards the payment of duty and interest, since the same is not contested, it is maintained. The appeal is allowed by way of remand to the Adjudicating Authority.
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