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2015 (12) TMI 241 - AT - CustomsValidity of notice for demanding of differential duty - Finalization of provisional assessment - Penalty u/s 18(2) - Undervaluation of goods - Held that:- As revealed from letter dated 13.10.2015 the assessment of two Shipping Bills in each cases, were finalised at the time of exportation of the goods. So, the proposal of finalisation of provisional assessment and consequent demand of duty alongwith interest in the show cause notices and confirmation of demand of duty and imposition of penalty by the adjudicating authority cannot be sustained. In the present case the issuance of show cause notice is prescribed by the law as a condition precedent to the commencement of proceedings and it must be addressed correctly, otherwise it will be treated as an invalid one. In Commissioner of Income Tax, Gujarat vs. Kurban Hussain Ibrahimji Mithiborwala [1971 (9) TMI 9 - SUPREME Court], a notice under Section 34 of the Indian Income Tax Act, 1922 was found by the Supreme Court to be invalid as referring to a wrong year and the entire proceedings were held to be void for want of jurisdiction. It is significant to note that the statutory notice is notice made by legislative enactment. Valuation - Demand of duty on additional amount of US$ 10 PDMT as commission to their overseas agents cannot be levied mainly on the basis of statement, without examining documents. In our considered view, the appellant should be given an opportunity to place the documents before the adjudicating authority in respect of actual freight and commission on their agents, in the interest of justice. However, the demand of FOB price as cum-duty price for determination of export duty, as held by the Tribunal in the case of Sesa Goa Limited (2014 (4) TMI 658 - CESTAT KOLKATA), is liable to be upheld. - issue of FOB price treating as cum-duty price was decided by the Tribunal and the appeal is pending before the Hon ble Supreme Court. The appellant Company is entitled to the benefit of actual freight. Further, the part of the demand of duty alongwith interest and penalty cannot be sustained. In such situation, imposition of penalty on the Director of the appellant Companies is not justified. - Appeal disposed of.
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