TMI Blog2017 (10) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... year from the relevant date, calling upon the concerned person to show cause, as to why the duty cannot be recovered from him. However, in exceptional circumstances, where non-levy or short levy of duty is by reason of fulfilment of the above ingredients, then instead of the period of one year, the proceedings can be initiated within five years, for recovery of such duty - In the present case, it is an admitted fact on record that the show cause proceedings were not initiated within the normal period of one year from the relevant date i.e. filing of Bills of Entries and payment of duty on the declared value. In view of the settled position of law and in view of the fact that the Department has not brought on any iota of evidence of the involvement of the importer-appellants in the fraudulent activities, concerning collusion, wilful mis-statement and suppression of facts with reference to value of imported goods, in our considered view, the demand could not have been issued for extended period - In the case in hand, it is an admitted fact that the show cause notice has been issued beyond the period of one year from the date of filing the Bills of Entries and payment of duty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Shri A.K. Prasad, the ld. Advocate appearing for the importer-appellants submitted that the proceedings initiated by the Department are barred by limitation of time inasmuch as the disputed period involved is from August 2009 to November 2012, whereas the show cause notice was issued on 21.07.2014. He stated that there is no ground for invoking the extended period of limitation, in view of the fact that the case of the importers relates to re-assessment, where the declared value has been loaded/ enhanced on the basis of contemporaneous imports. Thus, he submitted that in absence of any allegation of mis-declaration, invoice manipulation, concealment, additional foreign exchange repatriation or admission of evasion, the duty demand cannot be fastened beyond the normal period as provided under Section 28 of the Customs Act, 1962. To support such stand, the ld. Advocate has relied on the judgement of Hon ble Supreme Court in the case of Uniworth Textiles Ltd. vs. Commissioner of Central Excise, Raipur 2013 (288) E.L.T. 161 (S.C.). 3.1 The ld. Advocate further submitted that mere availability of import of identical or similar goods at higher prices is not sufficient fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporter-appellants between the period August' 2009 to February 2013. The provisions for recovery of short-levied or non-levied duties are contained in Section 28 of the Customs Act, 1962. The said statutory provision mandates the time limits for issuance of the show cause notice in different circumstances. The relevant provision is extracted herein below:- 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, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b)............ (2) ............. (3) ............. (4) Where any duty has not been levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of the goods declared by the importer-appellants at the time of filing Warehouse Bills of Entry and subsequently, even at the time of filing Ex-Bond Bills of Entry. Thus, it is not the case of the Department that the appellant had manipulated, concealed or altered any material evidence shown in the import documents filed before the authorities at the port of import. More importantly, there is no specific allegation that over and above the invoice price, the importer-appellants had paid any additional consideration in respect of the imported goods, other than payments through the approved banking channel. Thus, in such eventuality, the burden of proof of involvement of the ingredients such as, collusion, wilful mis-statement and suppression of facts entirely rests with the Department and it is not for the importer-appellants to establish the contrary. Perusal of the relevant documents available in the case records proves beyond any shadow of doubt that in view of change of opinion by the Department amongst its officers, the show cause proceedings were initiated beyond the normal period of limitation. The enhancement of value is not due to any evidence of fraudulent valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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