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2016 (9) TMI 218 - CESTAT MUMBAI

2016 (9) TMI 218 - CESTAT MUMBAI - TMI - Rectification of mistake quantification of demand non-fulfillment of export obligation demand of tax Held that: - there is an apparent error in mentioning the total duty foregone ₹ 23,86,928/- in notice dt. 23.8.2002 which should be ₹ 13,58,935/-. Accordingly the correct balance duty recoverable should be ₹ 12,23,041/- whereas incorrect amount of ₹ 22,51,034/- was proposed in the same was confirmed in the original order whi .....

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nt who was supposed to discharge the duty. It is also fact that the Bank Guarantee amount was not encashed by the department. The duty amount was not paid to the Government Exchequer - the interest chargeable on the entire amount of duty stand unpaid from the due date till the date of payment no relief from the payment of interest. - Period of limitation section 28 of the Customs Act, 1962 - Held that: - the goods were imported under EPCG Scheme for which the appellant executed the bond .....

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ir, Member (Judicial) And Shri Raju, Member (Technical) Shri P.V. Patankar, Advocate for Appellant Shri M.K. Mall, Assistant Commissioner (A.R) for respondent ORDER Per Ramesh Nair This appeal is directed against Order-in-Original No. 578/2004 MCH dt. 30.9.2004 passed by the Commissioner of Customs (Appeals) Mumbai-I, by which the Ld. Commissioner rejected the appeal filed by the appellant. 2. The fact of the case is that the appellant imported capital goods under various bill of entries under N .....

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interest at the applicable rate from the date of clearance of the first consignment till the date of payment of duty was confirmed. Against the aforesaid original order dt. 20.1.2004, the appellant filed appeal before the Commissioner (Appeals), which came to be rejected. However, the Ld. Commissioner as regard the dispute raised by the appellant regarding quantification of demand, stated that appellant are within their right to approach their lower authority for correction of mistake in calcula .....

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of ₹ 12,23,041/- + interest. However, surprisingly in the next duty demand notice dt. 23.08.2002 the total duty foregone was shown as ₹ 23,86,928/- and after deduction of the duty of ₹ 1,35,894/- shown as paid along with interest, the balance duty recoverable were shown as ₹ 22,51,034/- + interest at the rate of 24%. The adjudicating authority while adjudicating confirmed the duty demand notice dt. 23.8.2002 amounting to ₹ 22,51,034/- + interest at the applicable r .....

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artment was free to encash this bank guarantee therefore interest at least on ₹ 6,79,468/- is not payable . He further submits that the demand was raised after the normal period as provided under Section 28 of the Customs Act, 1962, therefore the demand is hit by limitation. He further submits that the appellant have already paid substantial portion of demand of ₹ 12,00,000/- during the period 31.10.2006 to 17.3.2006, which may be considered for quantifying the final demand. 4. On th .....

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ous obligation till the export obligation is fulfilled. Therefore in a case where the bond is executed and the same is alive the limitation provided under Section 28 shall not apply. 5. We have carefully considered the submissions made by both the sides. As regard quantification of demand, it is apparent from the bond as well as the demand notice dt. 1.5.2002 that the total duty saved/foregone in relation to import of capital goods under EPCG Scheme was ₹ 13,58,935/-. The appellant has adm .....

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l of Entry No. & Date : 11625 dt. 28.09.95 2. Name of Vessel : Lal Bahdur Shahstri 3. Country of Origin : U.K. 4. EPCG Licence No. & Date : PCG 2134314/C/XX/36/01/05 dt. 01.06.95 5. Assessable Value : ₹ 60,39,711/- 6. Duty Saved : ₹ 13,58,935/- 7. Description of Goods : Microgrinding Mill, Turbomiter, Rotational Moulding Machine, Single station Moulding, Machine, Electric & Finishing Tools, Moulds, forged steel, Galvansed Handles & Burners. From the above, it is clear .....

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f ₹ 6,79,468/- as for the same amount the Bank Guarantee was lying with the department. We do not agree with this submission for the reason that in case of non-fulfillment of export obligation it is the apparent who was supposed to discharge the duty. It is also fact that the Bank Guarantee of ₹ 6,79, 468/- was not encashed by the department. The duty amount was not paid to the Government Exchequer, therefore the interest will be chargeable on the entire amount of duty stand unpaid f .....

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