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2024 (3) TMI 1055 - AT - CustomsRejection of refund claim - amount deposited after pre-notice consultation - interpretation of section 28 of the Customs Act, 1962 - Non issuance of Show Cause Notice - HELD THAT:- A close look at section 28 indicates that a pre-notice consultation is necessary before issuing notice i.e. Show Cause Notice. The purpose of the same as understood, is obviously to indicate the ‘recovery of duties not levied or not-paid or short-levied or short-paid’. Here in the case on hand, a pre-notice consultation dated 9.10.2017 was issued in terms of proviso to section 28(1)(a) ibid to the ‘person chargeable with duty or interest’ and apparently, the appellant responded positively without any demur by paying the duty and interest as indicated. What was indicated / proposed to be demanded was a differential duty and hence nothing more needs to be said about the ‘characteristic’ of the demand since when proposed to be demanded, the payment was made religiously. Much emphasis has been laid on the non-issuance of letter / communication in writing as specified under sec. 28(2) and it is the case of the appellant that it having not issued any such communication in writing, the payment made by it loses the characteristic of duty - it is found that a positive act followed the pre-notice consultation and hence, nothing can be looked beyond for anything. If the pleas urged is to be considered, then there should have been a communication to the least, indicating as to why payment as proposed / demanded was made, but no such things appear in the file. The appellant having acquiesced, no further action was felt necessary. It appears that the differential duty arose on account of mis-match with regard to the classification of the product imported. It is the case of the appellant that the correct classification was 8480.60. But there was no request made for rectification / re-assessment, since it is the settled position of law that since acceptance of Bill of Entry is considered as self-assessment per se, the importer if aggrieved by the same, has to seek for modification / rectification / re-assessment as held by the Hon'ble Supreme Court in the case of ITC Ltd. Vs. CCE, Kolkata [2019 (9) TMI 802 - SUPREME COURT]. Rather, the appellant chose to seek only the refund which has rightly been rejected by the original authority. There are no merit in the case of the appellant - appeal dismissed.
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