2017 (7) TMI 317

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..... Customs Act, 1962 are present. The adjudication is time-barred since notice was issued on 31/8/2016 against bill of entry filed on 13/12/2013, passing the impugned order on 23/12/2016. Wherever, duty is not paid as required by law or there was short payment thereof, section 28 is invokable. Their cases are not the cases of short payment of the duty. In such an event, imposition of penalty is absurd. 1.1 Learned Senior Counsel further submits that the test reports relied upon by the Revenue which are appearing at page 4, 10 and 21 of the appeal paperbook, were supplied to the appellant after adjudication i.e. 01/02/2017 while adjudication was made on 23/12/2016. Subject goods were coal imported from Indonesia. The coal came along with test .....

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..... er appropriate duty has been paid. 1.4 It is his submission on behalf of appellant that Section 139 of the Customs Act, 1962 has specific provision for presumption as to the documents. There shall be total violation of law if reliance is placed on documents which were never provided to appellant nor were subjected to test under law. Appellant relies on the decision in the case of Commissioner of Customs, Visakhapatnam v. Truwoods Pvt. Ltd. 2016 (331) ELT 15 (SC), and more particularly para 4 thereof, to say that if document relied upon is not authenticated, such documents are not admissible in law and that become irrelevant. 1.5 There were six consignments of coal came to India from Indonesia. Out of that, four consignments were cleared i .....

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..... esia that supports the case of the appellant. But Customs held that COSA report has no authority and are not reliable. 1.7 Appellant further submitted that the documents at page 375-377 of the appeal folder if considered relevant for the purpose of adjudication, appellant has every right to lead defence thereon which will bring relief to appellants in the re-adjudication. If appellants submissions are heard and the matter is remanded for re-adjudication, that should not be done by the same adjudicating authority but a higher authority should adjudicate the same with objective approach to law. 1.8 So far as the penalty is concerned it is submitted that the same was not imposable in view of the fact that unless the ingredients of Section 28 .....

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