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TMI Blog1999 (8) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... in four instalments. In pursuance to that agreement, the appellant deposited the first instalment of 75,000 US $ in June, 1992. Thereupon M/s. BHW sent brochures and drawings evidenced by proforma invoice dated 17-11-1992. Value of drawings and brochures was given therein as 500 DM. It was specifically mentioned therein that it was not to be paid and that invoice was only for customs purposes. Appellant got brochures and drawings cleared on payment of duty on 500 DM. 2. Notice dated 20/23-10-1997 was issued by the Commissioner of Customs requiring the appellant to show cause why action should not be taken under Section 28 and 124 of the Customs Act. The grounds mentioned therein whether :- (a) the declared value of the goods 500 DM s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that there was no suppression of facts, collusion, fraud or wilful mis-statement made by the appellant, justifying the action of the Commissioner which was initiated long after expiry of six months. In the impugned order, the Commissioner has not stated that the appellant resorted to fraud, collusion or wilful mis-statement in suppressing any fact from the Custom authorities when the brochures and drawings were imported. In the order what the Commissioner states is "At the time of imports the party never mentioned that the drawings and brochures were imported in the said agreement. Thus they had mis-stated and suppressed the facts relating to the correct value of the said goods with the mala fide intention to evade customs duty". H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts or contravention of any provision of the Act or the Rules with intent to evade payment. Something more positive than mere inaction or failure on the part of the assessee or conscious or deliberate withholding of information when the assessee knew otherwise was required before the assessee could be saddled with any liability beyond the period of six months." Later in the case of M/s. Pushpam Pharmaceuticals Co. v. C.C.E., Bombay reported in 1995 (78) E.L.T.401 (S.C.). Their Lordships observed in para 4 of the judgment as under :- "Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er made it clear that the valuation shown therein was not for payment since it was not a commercial transaction. Invoice was to make procedure proper, in the sense for filing it before the Customs. That invoice was produced before the authorities. The entry therein was known to the department in November, 1992 itself. If they had any suspicion, they ought to have enquired into the details without any delay. They slept over the entire issue. So we are clear in our mind that Commissioner was not justified in invoking the extended period of five years provided under Section 28(1) of the Customs Act. 5. Since we come to the conclusion that the proceedings initiated by the Commissioner was clearly barred by limitation, we do not think it n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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