9911796707
TMI Blog1993 (4) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... on 16-5-1987. They claimed exemption under Custom Notification No. 46/85-Cus., dated 28-2-1985 and paid only basic duty at the rate of 25%. The invoice described the Horological materials as under : Brass Rods Diamn 1.5 mm Brass Rods Diamn 7.6 mm Brass flats 18.05 x 0.87 mm Brass Flats 230.0 x 1.65 mm (width x thickness) 3. The appellants contend that the goods satisfy the description given in the Custom Notification No. 46/85-Cus., dated 28th Feb. 1985. They further contend that the imported raw-materials are required for the manufacture of components of wrist watches and that they had submitted duly attested bond as well as end use certificate. However, a show cause notice dated 16-11-1987 under Section 28(1) of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of another consignment shows the classification is under sub-heading 7414.10 read with Notification No. 46/85. He has further held that the description of goods in the bill of entry and invoice were not of the specification covered in the Notification No. 46/85. 6. We have heard Shri S.N. Khanna, ld. Consultant for the appellant and Shri B.K. Singh, ld. SDR for the Revenue. Shri Khanna submitted that the duty had been deposited on 18-5-1987 and the show cause notice had been received by the appellant on 24-11-1987 which will be after 6 months from the date of payment and hence the demands were barred by time. In this context, he has relied on the following ruling : 1. M/s. Jayashree Textiles & Industries v. Collector of Customs, Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, it is not proper to permit the respondents to proceed with the show-cause notice. The respondents have undoubtedly jurisdiction to issue notice in case duty is short levied, but where the initiation of proceedings are challenged, then the respondents must come out with the material to establish that the officer had sufficient material prima facie to come to the conclusion that the duty was short levied. As the respondents have produced no material whatsoever, in my judgment, the proceedings commenced by the impugned show-cause notice are required to be struck down". (ii) Audo Viso Corporation v. Collector of Customs -1991 (53) E.L.T. 3 (Tri.). In para (9) of the order, the Bench has held : "First and foremost the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not meet the specifications given in the Notification. He submitted that this finding is not based on any charge in show cause notice nor the adjudicating authority had examined given any findings on this aspect of the matter and hence this finding is a mere presumption. In otherwise, the ld. Collector had failed to notice the end use certificate, the DGTD's certificate, original invoice and hence his findings were perverse. The Collector had indirectly questioned the certificatie issued by DGTD which was beyond his jurisdiction. In this context, he relied on the following rulings: (i) Oudh Sugar Mills Ltd. v. Union of India -1978 (2) E.L.T. (J 172) (S.C.) (ii) Bombay Chemicals (P) Ltd. v. Appellate Collector of Customs -1990 (49) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty was paid on 18-5-1987. But the Assistant Collector in his order has found that the duty had been paid on 22-5-1987. The show cause notice had been despatched on 16-11-1987. Both offices of Assistant Collector and that of the addressee is situated in New Delhi itself. Therefore, a reasonable presumption can be drawn that the show-cause notice had reached the Importer before 22-5-1987 and is within time. The importer had not specifically raised this issue in their reply to the show cause notice nor they had produced any proof of services as being 24-11-1987 and therefore, the plea of the importer has to be rejected and we hold that the show-cause notice is in time. 13. As regards the plea that the show cause notice is vague, ambiguo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g given any reasons in his order despite specifically pointed out by the importer, it follows that the authorities had not made up their mind clearly and had no reasons or grounds for making a short levy. The ld. Collector had tried to fill the lacunae by holding that the importer had not fulfilled the terms of the notification in question. As pointed out, this has not been the ground for reopening the assessment, in fact, no grounds had been given and hence we cannot presume that the Department could have been having in their mind this ground for reopening the assessment. When the reasons are not spelt out in clear terms in the show-cause notice for rejecting the claim for the benefit of the notification claimed by the importer then it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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