TMI Blog2015 (10) TMI 2034X X X X Extracts X X X X X X X X Extracts X X X X ..... , since the SCN does not support such a plea – SCN is bereft of demand to support claim under Section 72; second question of law is not relevant to the facts of the present case – Decided in favour of assessee. - Civil Miscellaneous Appeal No.350 of 2009 & M.P.No.1 of 2009 - - - Dated:- 26-6-2015 - MR. R. SUDHAKAR AND MS. K.B.K.VASUKI, JJ. For The Appellant : Mrs.RK.Sekina Reshma For The Respondents: Mr.Lakshmi Kumaran JUDGMENT (Judgment of the Court was delivered by R.SUDHAKAR,J.) This Civil Miscellaneous Appeal filed by the Revenue as against the order dated 12.08.2008 made in Final Order No.866 of 2008 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai was admitted by this Court on the following substantial questions of law: 1. Whether mentioning of Section 72 of the Customs Act, 1962 along with Section 28 of the Customs Act, 1962 would render the Show-Cause Notice outside the purview of Section 72, when the said Show-Cause Notice was purporting improper accounting of the imported materials under Section 72(1)(d) through violation of the condition specified in the exemption Notification No.53/97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f imported cotton, permissible wastage is 25% when used in the manufacture of combed cotton yarn below 40's count. If the waste exceeds 25%, no benefit of duty free import under the said notification would be available in the cotton imported and used in such excess waste. The assessee has been regularly corresponding with the jurisdictional authorities on the quantum of waste collected and some of the correspondences referable to the instant case were dated 02.02.2000, 16.10.2000, 06.10.2000, 10.11.2000 and 11.10.2001. These correspondences relate to excess generation of waste in respect of the imported cotton. However, on scrutiny, the Department was of the view that the cotton waste generated in the Course of manufacture of combed cotton yarn out of the imported cotton, exceeded the prescribed norms on several occasions, which the importer did not declare to the Department; consequently, statements were recorded from the person concerned and a show cause notice was issued on 16.12.2003 in the following manner: Therefore, M/s.Super Spinning Mills Ltd., D.Gudalur are hereby called upon to show cause to the Joint Commissioner of Central Excise (Tech), Trichy as to why i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pter heading 52.02 is exempt from whole of the duty. Accordingly, the Adjudicating Authority passed the following order: 21. From the above correspondence that took place over a period of time, it is clear that the issue of waste generated was well within the knowledge of jurisdictional Central Excise Officers. Hence, it cannot be said that there was suppression of facts regarding cotton waste generated. Therefore, there is no case for invoking extended period of limitation. Hence, the demand is not sustainable on the ground of limitation of time. 22. In view of the above findings, I pass the following ORDER I here by drop the proceedings initiated against M/s. Super Spinning Mills Ltd., 'C' Unit, D.Gudalur vide show cause notice dated 16.12.03. 5. As against the order of the Adjudicating Authority, the Department filed an appeal before the Commissioner (Appeals) contending that that the time limit specified under Section 28(1) of the Customs Act was not applicable to the case and that the applicable provisions were those of Section 72(1) of the Customs Act, which did not specify any time limit. The Commissioner (Appeals) rejected the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. Therefore they were not warehoused goods and provisions of Section 72 will not apply. Reliance placed in the case of Union Carbide India Ltd., reported in 1995(22) ELT 102. Since provisions of sec. 72 are not applicable, the lower authority having not invoked provisions relating to Central Excise Act have resorted to provisions of sec 28 and further found that proviso to sec 28 could not be invoked for the reasons stated in the order and accordingly dropped the proceedings. In this connection it may be noted that the Department's contention that sec 28 of Cus. Act has been wrongly invoked and that cannot be relied upon is totally misconceived for the reason that there is an application of mind on part of the Officer who has invoked proviso to sec 28(1) of the Cus Act which envisages demand of duty for a period of 5 years in cases of various situations mentioned therein. After having invoked Section 28(1) without invoking the correct provisions of Section 72, the Department cannot change stand in the grounds of appeal that Section 28 itself is not applicable and only sec 72 is applicable. This alleged wrong invoking of Section 28 cannot come to the rescue of the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) 8. Aggrieved by the order of the Tribunal, the Department is before this Court in this appeal. 9. Learned Standing Counsel appearing for the Department buttress the question of law raised by stating that the mere wrong mentioning of provision of law would not render the entire exercise futile. In this regard, he relied on the decision in the case of Collector of Central Excise, Calcutta V. Pradyumna Steel Ltd. reported in 1996 (82) ELT 441 (SC) and submits that in the said decision, the Supreme Court held as follows: It is settled that mere mention of a wrong provision of law when the power exercised is available even though unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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