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2023 (6) TMI 912 - SC - CustomsRejection of application for rectification of mistake - Applicability of extended period of limitation - Tribunal did not consider the issue sought to rectified - Recovery of differential duty - hydraulic pumps - same goods were imported by the sister concern of the appellant, namely, M/s Shashi Charu Hydraulics Pvt. Ltd. at a higher price, albeit directly from the manufacturer - HELD THAT:- When any duty had not been levied or had been short-levied or erroneously refunded, or when any interest payable had not been paid, part paid or erroneously refunded, the proper officer might have served show cause notice within one year in case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital; and in any other case, within six months from the relevant date. The Proviso allowed an extended period of five years when there was collusion or any wilful mis-statement or suppression of facts. The appellant brought it to the notice of the Tribunal by way of an application under Section 129-B of the Act, that the question in regard to availability of extended period for SCN in terms of Proviso to Section 28(1) of the Act had not been specifically dealt with in the order dated 06.11.2018. However, it was observed in the impugned order dated 17.07.2019 that during the course of hearing, the Tribunal was not persuaded to accept the contentions of the appellant. The Tribunal also stated that the relevant aspect had been sufficiently ‘amplified’ in the principal order dated 06.11.2018. After taking note of the observations therein and the reasons that prevailed with the Tribunal, it is difficult to find if the Tribunal adverted to the question as to whether the necessary elements of the said Proviso to Section 28(1) of the Act were existing or not. Maybe, such a question was not raised by the appellant in the memo of appeal presented before the Tribunal in specific terms but, indisputably, this question remains a jurisdictional question because without existence of the elements specified in the said Proviso to Section 28(1), the show cause notice in question, as issued on 26.09.2006 in relation to the imports made from November, 2001 to April, 2003, could not have been maintained. It is deemed appropriate that the question of availability of extended period be examined by the Tribunal with reference to the facts of the case and the law applicable - It is not deemed necessary to delve into the findings of the Tribunal with reference to the fact that there was no mis-declaration so as to justify confiscation or redemption fine, because the preliminary issue herein would be as to whether the elements of the Proviso to Section 28 had been existing in the first place, which would be decided independent of the findings/observations of the Tribunal in the second impugned order dated 17.07.2019. The impugned orders are modified to the extent that Appeal No. C/1132/2007 stands restored; and the question as to whether the extended period in terms of the Proviso to Section 28(1) of the Act of 1962 is available in this matter or not is remitted for consideration of the Tribunal in accordance with law - Appeal allowed.
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