TMI Blog2008 (8) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... export. The present dispute relates to such imports made between Dec. 99 to March 02. During this period, cotton waste was generated in the course of manufacture of cotton yarn out of the imported cotton. This exceeded 25%, which was the maximum permissible wastage for EOUs (like the respondents) using imported cotton in the manufacture of combed cotton yarn below 40 s counts. According to the department, the EOU was liable to pay duty of customs on a quantity of the imported cotton which was equivalent to the quantity of excess cotton waste generated during the aforesaid period. This view based on condition No. (7) attached to Customs Notification 53/97 ibid. Accordingly, show-cause notice dt. 16-12-2003 was issued to the respondents de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the bond executed by them. It is submitted that, as the excess cotton waste was not accounted satisfactorily, the provisions of Section 72(1) were applicable and duty could be demanded on equivalent quantity of imported cotton, without time limit. The ld. SDR has reiterated these grounds of the appeal. 3. It is submitted by the ld. Counsel for the respondents that the factual allegations in the SCN were all made with reference to Section 28 of the Customs Act and that there was no allegation with reference to Section 72 of the Act. The counsel has particularly referred to an averment contained in para-4 of the memo of appeal. This averment reads thus : The said amounts were demanded invoking provisions of Section 28 and 72(1)(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 59 and which have not been cleared for home consumption or exportation (or) are not duty accounted for to the satisfaction of the proper officer. For such a demand of duty, the ingredients of clause (d) of sub-section (1) of Section 72 should be alleged and proved. This has not been done in the present case. As already observed, the tenor of the SCN is for demand of duty under the proviso to Section 28(1) of the Customs Act. Therefore, the claim of the appellant that Section 28 was erroneously mentioned in the SCN and that it was Section 72 which was intended to be pressed into service cannot be accepted. The findings of the ld. Commissioner (Appeals) are eminently sustainable. The appeal gets dismissed. (Dictated and pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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