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2023 (4) TMI 614 - CESTAT NEW DELHIValuation of imported goods - modified Tapioca Starch - rejection of assessabla value - redetermination of value under Rule 5 of the Valuation Rules - allegation of misdeclaration of import value by wilful suppression of facts - extended period of limitation - seeking refund of deposit of Rs. 10 lakhs by the respondent during the investigation - HELD THAT:- It is evident from the SCN that the demand in dispute is regarding the past consignments which were already cleared as per the declared values by the respondent. The assessment, therefore, attained finality. Once the assessment attained finality, it can be either appealed against to the Commissioner (Appeals) by either side or a notice under section 28 can be issued by the Revenue. While appeal to the Commissioner (Appeals) can be for any aspect of the assessment, a notice under section 28 can be issued only to recover duty not paid, short paid or erroneously refunded or not levied and it can be issued only by “the proper officer”. The notice can be issued within the normal period of limitation of one year under section 28 (1) from the date of clearance of goods for home consumption or, within the extended period of limitation of 5 years if the short payment or non-payment is because of collusion or any willful misstatement or suppression of facts. In this case, the SCN was issued invoking the extended period of limitation and there is not even any allegation of collusion or suppression of facts and the only allegation is of willful mis-statement of the value by the respondent, which was inferred from his statement. If the SCN is issued alleging non-payment or short payment of duty, the basis of such an allegation must be on sound footing, backed by evidence. There is nothing in the SCN and in the grounds of appeal before us which shows that the declared value was incorrect apart from the statements. The statements, as summarized, only show that the respondent was ignorant of many factors, but it does not establish that the respondent had mis-declared the value. It is also evident that there was no chemical analysis report nor was any sample drawn to allege mis-declaration of the nature of the goods. Deposit of Rs. 10 lakhs by the respondent during the investigation - HELD THAT:- It can only be called as deposit. The mere fact that some amount has been deposited during investigation does not establish in any way the case of the Department. Needless to say since the respondent has succeeded, the amount so deposited should have been refunded to him, if it has not already been refunded. Appeal of Revenue dismissed.
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