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2018 (5) TMI 1873 - AT - CustomsClassification of imported goods - Alkyl Ketene Dimer (AKD wax) - whether classified under CTH 38099200 or under CTH 34049090? - invocation of extended time proviso under section 28(4) of the Customs, Act, 1962 - HELD THAT:- All the facts regarding importation, description of the product and its classification were in the knowledge of the Department. The Audit which was conducted after the clearance of the import consignment also raised this issue of classification based on the facts which were there before the Department and therefore, in our view, we find that the charges of mis-declaration, fraud, misrepresentation etc. with an intent to evade payment of duty are not present in the present case. The Hon’ble Supreme Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT] has held that as all the relevant facts are in knowledge of Department, when the first show cause notice was issued, the issue of subsequent show cause notice on the same facts could not be taken for invoking the charges of suppression of facts etc., for invoking the extended time proviso, this matter was already in the knowledge of the department since year 2012 itself. Thereafter another show cause notice for normal period have been issued by them on 18 December, 2015 and thereafter issuing the impugned show cause notice again on 29.11.2016 by invoking the extended time proviso, is not legally sustainable. The demand in the show cause notice is barred by limitation and therefore, same is legally not sustainable - the appeal is allowed on the point that extended time proviso under Section 28 of Customs Act, 1962 is not invokable in this case.
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