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2019 (7) TMI 400 - AT - CustomsValidity of Demand u/s 28 of the Customs Act, 1962 without challenging bill of entry - Import of Computer Radiography System - classification of goods - classified under 90189099 or under 90229099? - case of appellant is that the assessment order in the subject bill of entry was not challenged by the department before the appropriate forum and therefore no demand under Section 28 of the Customs Act, 1962 is maintainable - applicability of decision in the case of Priya Blue [2004 (9) TMI 105 - SUPREME COURT] and COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS FLOCK (INDIA) PVT. LTD. [2000 (8) TMI 88 - SUPREME COURT]? HELD THAT:- The judgment of Priya Blue and Flock India of the Hon’ble Apex Court are on the point of refund claim by the assessee without challenging the assessment order in the bill of entry. The present case is different. It is a case where after assessment and clearance of the goods is completed by issue of order under Section 47 of the Customs Act, 1962, within the normal period of limitation, the Deputy Commissioner has raised a demand under Section 28. While raising the demand he issued a show cause notice proposing re-classification of the imported goods and gave an opportunity to the respondent to present their case and considered their submissions - This is not the ratio laid down by the Hon’ble Apex Court in the case of Priya Blue or Flock India. Cases pertaining to issue of demand under Section 28 after clearance of the case under Section 47 are covered by the judgment of the Hon’ble Apex Court in the case of Jain Shudh Vanaspati Ltd., [1996 (8) TMI 108 - SUPREME COURT] which clearly held that a demand can be raised under Section 28 even after clearance of the case under Section 47. Appeal allowed - decided in favor of appellant.
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