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2014 (1) TMI 533 - AT - CustomsConfiscation of goods - Penalty u/s 112 - Benefit of concessional rate of customs duty under Notification No.21/2002-Cus dated 01.03.2002 - Held that:- as per sub-section 28 (1) (b), if any duty is discharged before the service of show case notice under sub-section 28 (1) (a), the then there is provision under sub-section 2 of section 28 (a) that no notice should be served on the person who is liable to pay said duty. We find, that the provision of section 28 (2) would clearly get attracted in this case as there was no suppression of fact, wilful misstatement on the pat of the main appellant Shreeji Shipping a fact undisputed, as the consignment was examined by lower authorities before extending the benefit of notification No. 21/2002-Cus, to the appellant; directing him to pay the custom duty as assessed under chapter heading No. 8905 9090. In our view subsequent change of mind on the part of revenue authorities, as regards the classification of the goods imported, cannot be held against the appellant as the view of assessee was a possible one, as it has been approved by the authorities, when the bill of entry was assessed finally. There was no provisional assessment nor there was any bond executed for release of the goods to the main appellant. The law laid down by the larger bench would apply in the case in hand, and it has to be held that the liability to confiscation under section 111 (m) & Customs Act, 1962, as ordered by the adjudicating authority is incorrect. We are also unable to agree to the proposition of the adjudicating authority for liability to confiscation as there is nothing on record to indicate that the appellant has mis-declared any particulars in the bill of entry filed by them while clearing the consignment. Section 111 (m) of the Customs Act, 1962 can come into play only when there is a mis-declaration of value or any particular in the bills of entry. There is no dispute that the appellant has declared their consignment correctly and was found correct on examination by lower authorities. In view of this the confiscation order by the adjudicating authority under the provision of 111 (m) is unsustainable - Decided in favour of assessee.
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