TMI Blog2007 (12) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri K.K. Agarwal, Member (T) [Order per : K.K. Agarwal, Member (T)]. - This is an application for waiver of pre-deposit of duty amounting to Rs. 65,81,210/- along with interest demanded by the Commissioner (Appeals) vide his impugned order. 2. The brief facts of the case are that the appellants imported computers, monitors, keyboards and mouse and cleared the same by filing 30 different bills of entry on payment of nil basic customs duty, CVD and education cess and on payment of additional duty of 7% in terms of Notification 76/2004, dated 26-7-2004 as amended by Notification 38/2005, dated 2-5-2005 and on payment of 4% additional duty in terms of Notification No. 19/2005, dated 1-3-2005. They were however, issued a show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is decision, the provisions of Section 11A were amended in the year 2000 and it has now been provided that the demand under Section 11A can be raised in respect of short levy or short payment even when such short levy or short payment is on the basis of any approval, acceptance or assessment relating to the rate of duty or valuation of excisable goods under any other provisions of the Act or Rules made thereunder. Demand issued in the past when such amendment was not in force was also validated by Section 11 by the Finance Act, 2000. However, no such corresponding amendment has been made in Section 28 even though the two provisions are parallel. Therefore, in the custom cases where the assessment has not been challenged, demand for the norm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Industries Ltd., 2006 (202) E.L.T. 693. The learned Advocate, therefore, submitted that in the view of series of decision, the demand Under Section 28 cannot be raised for a normal period unless the assessment are challenged and modified in appeal. The very show cause notice does not survive and accordingly, the demands are liable to be set aside. 4. The learned DR however submits that Section 28 is an independent provision for demanding duty in case of short levy etc. and since the assessment on the bill of entry are generally made on the basis of declaration given on the bills of entry, the department has been given power to demand duty in those cases where such declaration are found to be incorrect or incomplete or there is som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpower the department to issue show cause notice even in those cases where the assessment have been made, no such change has been made in Section 28. Though it is correct that the apex court has in its order stated that unless assessment are modified in appeal or reviewed under Section 28 of the Customs Act 1962 refund cannot be granted, the issue before it was to decide as to whether unless an assessment is challenged a refund can be claimed or not and it was never an issue whether assessment can be challenged by way of review under Section 28. Since in earlier decisions, we have taken a stand that demand cannot be raised without challenging the assessment in appeal, the plea whether Section 28 gives the power of review of assessment or no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
