TMI Blog2014 (1) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... was a possible one, as it has been approved by the authorities, when the bill of entry was assessed finally. There was no provisional assessment nor there was any bond executed for release of the goods to the main appellant. The law laid down by the larger bench would apply in the case in hand, and it has to be held that the liability to confiscation under section 111 (m) & Customs Act, 1962, as ordered by the adjudicating authority is incorrect. We are also unable to agree to the proposition of the adjudicating authority for liability to confiscation as there is nothing on record to indicate that the appellant has mis-declared any particulars in the bill of entry filed by them while clearing the consignment. Section 111 (m) of the Customs Act, 1962 can come into play only when there is a mis-declaration of value or any particular in the bills of entry. There is no dispute that the appellant has declared their consignment correctly and was found correct on examination by lower authorities. In view of this the confiscation order by the adjudicating authority under the provision of 111 (m) is unsustainable - Decided in favour of assessee. - C/226, 227 & 201/2012 - Final Order No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment imported but did not impose any redemption fine in lieu of the confiscation. The adjudicating authority imposed penalties on the main appellant and other two appellants under section 112 (a) of the Customs Act, 1962. 4. Ld. counsel Sh. V.K. Jain along with Sh. H. Modh, Advocate appeared on behalf of the appellants. It is the submission that the imposition of penalty on the appellant as such is in correct as on being pointed out, M/s. Shreeji Shipping discharged the entire differential duty liability along with interest before the issuance of show-cause notice. It is the submission that the provision of section 28 (2) of the Customs Act and provision of section 28 (2) (b) of the Customs Act, 1962 will be applicable in this case, as the consignment of crane which was imported by the appellant was subjected to examination by the Customs Authorities. It is his submission that the said examination was conducted on 25.07.2011 and the examination order categorically records that the description, quantity as declared is in accordance with the packing list, bill of lading and invoices which accompanied the said consignment. It is his submission that in a situation wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellant Shri Shreeji Shipping discharged the entire differential duty along with interest, stating that there may have been an error in classification. 9. On such factual matrix, it needs to be now decided that appellants herein are liable for imposition of penalty under section 112 (a) of the Customs Act, 1962. 10. We find that the provision of section 28 of the Customs Act, 1962 specifically provides for such kind of situation. We may reproduce the, said section in its entirety:- [28. Recover of duties not levied or short-levied or erroneously refunded. (1) Where any duty has not been levied or has been short-levied or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty in full or in part, as may be accepted by him, and the interest payable thereon under section 28AA and the penalty equal to twenty-five percent of the duty specified in the notice or the duty so accepted by that person, within thirty days of the receipt of the notice and inform the proper officer of such payment in writing. (6) Where the importer or the exporter or the agent or the employee of the importer or the exporter, as the case may be, has paid duty with interest and penalty under sub-section (5), the proper officer shall determine the amount of duty or interest and on determination, if the proper officer is of the opinion- (i) that the duty with interest and penalty has been paid in full, then, the proceedings in respect of such person or other persons to whom the notice is employed under sub-section (1) or sub-section (4), shall, without prejudice to the provisions of section 135, 135A and 140 be deemed to be conclusive as to the matters stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then, the proper officer shall proceed to issue the notice as provided for in claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be seen from the above reproduced section that as per sub-section 28 (1) (b), if any duty is discharged before the service of show case notice under sub-section 28 (1) (a), the then there is provision under sub-section 2 of section 28 (a) that no notice should be served on the person who is liable to pay said duty. We find, that the provision of section 28 (2) would clearly get attracted in this case as there was no suppression of fact, wilful misstatement on the pat of the main appellant Shreeji Shipping a fact undisputed, as the consignment was examined by lower authorities before extending the benefit of notification No. 21/2002-Cus, to the appellant; directing him to pay the custom duty as assessed under chapter heading No. 8905 9090. In our view subsequent change of mind on the part of revenue authorities, as regards the classification of the goods imported, cannot be held against the appellant as the view of assessee was a possible one, as it has been approved by the authorities, when the bill of entry was assessed finally. We find that the various decision of the tribunal hold such view. 11. Yet another angle to the entire case is that, the said crane was cleared by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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