TMI Blog2017 (6) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... milar issue, it was held that closure of proceedings in terms of Section 28 is correct - appeal dismissed - decided against Revenue. - Customs Appeal No.54799/2014-SM - Final Order No. 53411/2017 - Dated:- 19-5-2017 - Shri B. Ravichandran, Member (Technical) Rep. by Shri K. Poddar, AR for the appellant. Rep. by Shri Saurabh Kapoor, Advocate for the respondent. ORDER The Revenue is in appeal against order dated 29.05.2014 of Commissioner (Appeals), Customs, New Delhi. 2. The brief facts of the case are that the proceedings were initiated against the respondent with reference to improper valuation of imported goods. After due investigation, a show cause notice dated 28.11.2012 was issued to the respondent to demand di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some deposit of duty made during the investigation can be only treated towards differential duty and not towards penalty. Penalty can arise only upon adjudication. As such, the closure under Section 28(5) is not tenable. 6. I find that the provisions of Section 28(5), as reproduced below, is very clear:- SECTION 28. Recovery 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty before issue of show cause notice. Admittedly, further, the respondent paid 25% of the said duty amount, towards penalty, within 30 days of the receipt of the show cause notice. As such, in terms of the legal provisions, mentioned above, the respondents have right to close the matter without further adjudication. It is a well settled legal position that all proceedings arising out of the same matter shall stand closed upon fulfillment of the conditions mentioned therein. A reference can be made to the recent decision of the Tribunal vide Final Order No.60130/2017 dated 19.01.2017, where the legal issue was examined and it was held that closure of proceedings in terms of Section 28 is correct. 8. In view of the above discussion and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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