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2019 (1) TMI 622 - AT - CustomsValidity of Show Cause Notice (SCN) - Misdeclaration of imported goods - refrigerant - it was alleged that appellant mis-declared the refrigerant as R-32 which actually is R-22 and also mis-declared about weight, size and price - whether when the appellant has paid the entire duty amount alongwith the interest and the penalties, the proceedings would have been concluded? - Held that:- The bare perusal of sub-section 5 and sub-section 6 of Section 28 of the Customs Act makes it clear that the same is a beneficial piece of legislation with an intention to reduce the litigation proceedings where the assesse satisfies the condition of the said Section. The language makes it clear that the provisions provide for deemed conclusion of the proceedings against the assesses if the payment as regard the duty, interest and 15% penalty thereof stands made by the assesse within a period of 30 days of the receipt of Show Cause Notice. The appellant herein has made the payment against the impugned bill of entry dated 29.09.2015 even prior the issuance of Show Cause Notice dated 30.01.2016 alongwith the payment towards the penalty interest on 01.12.2015, 07.01.2016 and 18.02.2016 respectively. The requisite TR-6/GAR-7 Challans are attached with the Appeal papers. As per the above provision, the appellant had the time to make the deposit till 01.03.2016 but the payment stands made by 18.02.2016. It is also apparent from the Show Cause Notice that the said payment of the differential duty and that of the penalty was brought to the notice of the Department vide letter dated 08.01.2016. The said acknowledgment is very much recorded in the Show Cause Notice itself - In the given circumstances, it can be concluded that the Department has committed an error even while issuing the Show Cause Notice. No doubt Sections 28(5) and 28(6) are applicable without prejudice to the provisions of Sections 135, 135A and 140 of the Customs Act but perusal of Show Cause Notice makes it clear that none of these provisions have been invoked at the time of issuing Show Cause Notice - It is well settled law that the legislative intent, extending certain beneficial provision to the assessee, should not be made frivolous by interpreting the provision in a particular manner other than the one which reflects upon such intent. The present is opined to be a clear case of presumed and assumed interpretation of Section 28(5) and 28(6) by the Adjudicating Authorities below. The Commissioner(Appeals) is held to have committed an error while giving more emphasis to a clarificatory Circular than to the settled provision of the statute - appeal allowed.
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