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2022 (3) TMI 1269 - AT - CustomsBenefit of nil rate of additional duty of Customs (SAD) - Department formed an opinion that said exemption was applicable only to the pre-packaged goods intended for retail sale where as the software imported by the appellant was not for retail sale but was meant for the machines imported by them - section 5 of section 3 of Customs Tariff Act, 1975 - Time limitation - HELD THAT:- Coming to the facts of the present case, a mere fact that notification under which appellants were claiming exemption was not applicable to them, at the time of first audit, there was no reason with the appellant to discontinue the availment of exemption of ‘NIL’ duty. Appellant stopped availing the same immediately it was pointed out by department at the time of 2nd audit. Thus there seems no mis-statement or suppression. The appellant, in addition, immediately paid the differential duty that too with interest and even penalty, question of any intent of evading duty by the appellant does not at all arise. Hon’ble Apex Court decision in the case of PAHWA CHEMICALS PRIVATE LIMITED VERSUS COMMISSIONER OF C. EX., DELHI [2005 (9) TMI 92 - SUPREME COURT] wherein it was held that mere failure to declare does not amount to willful mis-declaration or willful suppression. There must be some positive act on the part of the party to establish either willful mis-declaration or willful suppression. When all facts are before the Department. Hon’ble Apex Court in the case of Union of India vs Ashok Kumar and Ors. reported as [2005 (10) TMI 536 - SUPREME COURT] observed that “it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility.” Reverting to the facts of the present case, there already was an audit in the year 2013 hence entire information was with the department since then. Also no shortcoming was noticed during that audit, question of evasion of duty for the same period does not at all arise. Invoking the extended period under the proviso of Section 11A is accordingly not sustainable. Demand for extended period is barred by time. For the normal period also there is no evidence to prove the allegation of short payment of duty. Appeal dismissed.
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