TMI Blog1989 (11) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of customs duty payable on certain clearances of Asbestos Fibre from their customs Bonded Warehouse inasmuch as that during the period August, 1978 to 3-7-1979 the duty was paid on the value calculated at the exchange rate prevailing on the date of clearance of goods from the warehouse as against the duty required to be paid on the value calculated at the exchange rate prevailing at the time of landing of the consignment at the port as per provisions of amended Section 14-15 of the Customs Act, 1962. In reply to the show cause notice the appellants submitted that the amount be adjusted under protest against their refund claims awaiting sanction. The Assistant Collector confirmed the demand. In appeal, the Appellate Collector of Customs w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctronics Industries v. Collector of Customs and Central Excise, reported in 1989(39) E.L.T.-585. In this connection he has brought to our notice the refund claim due to excess payment on account of exchange rate on similar transactions in respect of other clearances was rejected by the Department as time barred. Lastly, he drew our attention to the Supreme Court decision in the case of Chemphar Drugs [1989(40) E.L.T.-276 (S.C.)] wherein it was held that something positive other than mere inaction or failure on the part of the manufacturer is proved - Conscious or deliberate withholding of information is necessary to invoke larger limitation of five years. 4. Shri G.V. Naik, learned JCDR appearing for the respondent submitted that Form 3 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce unintentional is contrary to the word wilful. In law, misrepresentation (misstatement) means representing something which is not true. If it is expressed or stated knowingly that it is not true, it amounts to intentional/wilful misrepresentation. Otherwise it is mere innocent misrepresentation. In the present case it may be mere misstatement or mistake of law but it cannot be considered as wilful misrepresentation. Furthermore in the absence of clear finding or allegation of suppression of facts i.e., misrepresentation at the original stage, it cannot be developed into a later stage and at any rate in the absence of finding about wilful misrepresentation demand cannot be raised beyond six months. In the view we have taken, the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal is allowed. This argument does not appear valid and is to be rejected. If short-levy has taken place there are remedial provisions in the Customs Act. If the correct provision has not been applied to rectify the short-levy here, the case cannot be stretched to fit into the exceptional category covered by the proviso to Section 28 of the Customs Act, 1962 by raising the allegation of wilful misstatement. The facts of the case do not point to such a state of affairs, particularly as the alleged misstatement related to exchange rates which is not an information in the special or peculiar knowledge of the appellants but very well know or ought to be to the Departmental Officers who could have taken appropriate coercive action within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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