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2019 (7) TMI 911 - AT - CustomsTime Limitation - invocation of proviso to section 28(1) of Customs Act, 1962 - service of notice - classification of goods - HELD THAT:- On a perusal of the ‘notice’ that the first appellate authority found to be sufficient, we observe that this is a summons for document to complete the process of ‘post clearance’ audit and, that instead of enumerating the documents, an order for recovery was included. This clearly, therefore, is not a notice to show cause as to why the duty allegedly short-paid should not be recovered but is a demand itself. Demand without a notice is legal unsustainable. The show cause notice dated 4th November 2009 does not place on record any of the ingredients warranting invoking of the extended period. Consequently, that show cause notice is barred by limitation. Classification of goods - HELD THAT:- The principle of classification is that a declared heading can be unsettled only if the alternative heading proposed by the assessing officer in a show cause notice is found to be appropriate. In the absence of such a finding, the declared heading would have to be the only available substitute which, notwithstanding any doubt of its appropriateness, will remain until unsettled in proper proceedings in accordance with law. Appeal allowed - decided in favor of appellant.
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