TMI Blog2018 (9) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter and therefore, the assessee cannot be allowed to contend that on the date when they utilized the licence, it was not cancelled. Time Limitation - Held that:- The show cause notice has been issued invoking Section 28(1) of the Act, which is well within the period of six months from the date on which the offence was deducted and the licence was cancelled by the Joint Director General of Foreign Trade. Therefore, the power of the Customs Authority to initiate action shall at best commenced from the date on which the offence report is received by them and not earlier. Therefore, the contention raised by the assessee in this regard, is rejected. The correct legal position has been spelt out in the decision in Friends Trading Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Is the 2nd respondent Tribunal right in not even adverting to or give a considered finding as to whether the demand made under show cause notice is barred by limitation inasmuch as rigour of proviso to Section 28(1) does not stand attracted to the facts of the instant case inasmuch as there is no conscious or overt act or omission attributable to the appellant which would partake the nature of suppression, willful mis-statement of fact etc. On the admitted position that the appellant had used the DFRC/DFIA and TRAs thereof on a bonafide belief that the same were valid and subsisting on the date of the clearances which was in fact? 3.The assessee was issued with a show cause notice dated 10.06.2011 proposing to deny the benefit of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... played which has resulted in issuance of show cause notice dated 10.06.2011 to the assessee with the above stated proposal. The assessee submitted their objections and the Adjudicating Authority, vide order dated 16.10.2012, confirmed the proposal and demanded duty. Aggrieved by the same, the assessee has preferred an appeal before the Commissioner (Appeals), who by order dated 28.06.2013, confirmed the order of the Adjudicating Authority. The assessee took up the matter on appeal to the Tribunal, which by the impugned order, rejected the same, as against which, the present appeal has been filed. 6.Learned counsel for the assessee submitted that the Tribunal failed to consider that the extended period of limitation under the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H). 9.We have heard Mr.S.Kirshnaanadh, learned counsel for the appellant and Mr.A.P.Srinivas, learned Senior Standing Counsel for the respondents. 10.The first aspect of the matter, which has to be considered, is with regard to the interpretation sought to be given to Section 28 of the Act, as it stood at the relevant time. In terms of Section 28(1) of the Act, when any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital may demand the same within one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not earlier. Therefore, the contention raised by the assessee in this regard, is rejected. 14.So far as the decision in the case of Sampath Raj Dugar (supra) is concerned, it was totally on different facts and circumstances and cannot lend any support to the case of the assessee. 15.So far as the decision in Binani Cement Ltd. (supra) is concerned, the Division Bench was of the view that the authorities, viz., Commissioner (Appeals) as well as the Tribunal, have concurrently held that there is no misrepresentation or suppression of fact. This factual finding led to the Division Bench granting relief in favour of the assessee. However, in the case on hand, both the authorities, viz., the Adjudicating Authority as well as the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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