9911796707
TMI Blog1989 (11) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the duty in question. 3. No particular reason was given in the demand notice. 4. They had replied to this notice and the Assistant Collector passed the order in original apparently without taking their reply into account and again without assigning any reason for demand of the differential duty. 5. Their appeal was also rejected by the Collector (Appeals). 6. The issue, however, appears to centre around the gazette Notification dated 6th October, 1986 which includes Notification No. 439/86-Cus. This notification amends Notification No. 62/85 and if applied would result in a higher rate of duty than at which the goods were assessed. Since the bill of Entry was presented on 6-10-1986 and the duty was paid on 8-10-1986, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egretted that he could not issue such a certificate in view of the directions from the CBEC. Accordingly, they addressed a letter to the CBEC and the Commissioner, Tax Research, replied to them. The correspondence exchanged is at Annex. XIII to the application. 9. From this, it is apparent that the CBEC and the Commissioner are coming in the way of their getting the relevant information. Since the whole case revolves around this factual information, the matter cannot be correctly adjudicated in the absence of this information. Hence, it was their prayer that this information may be called for. 10. In this connection, they would like to mention that the Tribunal has the powers of a Civil Court in terms of Section 129-C to summon any docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of presentation of the Bill of Entry. It was also his contention that the Respondent in this case is the Collector of Customs, Calcutta and not the CBEC or the Commissioner Tax Research. Under the circumstances, the Tribunal could give appropriate directions only to the said Collector and not the CBEC or other officers. It was also his contention that Section 30 of CPC and Sections 74 and 78 of the Evidence Act were not required to be invoked and were not relevant. In this connection, he would like to point out that what is sought to be ascertained is factual information and not any provision of law and that is why the said Sections are not relevant. He would also like to state that the instructions issued by the CBEC and the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong period, he added. 16. In response to a Court question both the sides could not indicate the designation of the officer who had assessed the Bill of Entry. 17. We find that the Ld. Consultant's pleadings have a lot of force. 18. The demand notice apparently gives no reasons for the amount in question. It merely indicates the notification number and date which, by itself, was not sufficient. 19. The Assistant Collector has passed an ex-parte order apparently without taking into account the appellant's reply and without granting a hearing. Further more, he has not given any reason for the decision taken. In other words, the Order in Original is not a speaking order. 20. That apart, the bench had raised a query as to who had assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the appellants have failed to produce documentary evidence in support of their contention. 23. In our opinion, a gazetted notification bearing a particular date is presumed to be published on the date indicated thereon unless proved otherwise. If it can be shown that it was actually published on a date subsequent to the one indicated on it, then it is the date of actual publication (i.e. the act of making it public) which will be the relevant date with effect from which it could come into force. This proposition having been accepted by the Collector (Appeals), he should have caused enquiries to be made in this regard. In any case, since the demand had been raised by the Deptt. the burden of proving that the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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