TMI Blog2019 (9) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, Revenue has itself opted not to settle the issue in terms of sub-section 2B of Section 28 of Customs Act, 1962. Having done so they cannot go back subsequently on failing in adjudication proceedings to ask for settlement and appropriation of the amounts paid in terms of this section. Appeal dismissed - decided against Revenue. - Customs Appeal No. 324 of 2010 C/Cross/24 of 2010 - FINAL ORDER NO. A/86703/2019 - Dated:- 24-9-2019 - Mr. S.K. Mohanty, Member (Judicial) and Mr. Sanjiv Srivastava, Member (Technical) Shri T. Viswanathan, Advocate, for the Appellant Shri Ramesh Kumar, Authorised Representative for the Respondent ORDER This appeal filed by the revenue is directed against the order in original No 166/2009 CC(I), JNCH dated 17.12.2009, of the Commissioner Customs (Imports), Nhava Sheva. By the impugned order Commissioner held as follows: 14. Accordingly, I pass the following order: (i) The imported goods namely, OFS is classifiable under CTH 90011000; benefit of Notification No 024/2005-Cus is not available for them. (ii) An amount of ₹ 14,99,939/- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 28(1) of the Customs Act, 1962. (iv) The amount of ₹ 92,94,731/- deposited voluntarily should not be appropriated against differential duty liability in respect of the imports mentioned at Annexure A to this notice. (v) Interest should not be recovered from them on duty short levied/ short paid in terms of Section 28AB of the Customs Act, 1962. (vi) Penalty should not be imposed upon them under section 112(a)/ 114A and 114AA of the Customs Act, 1962. 2.3 The show cause notice has been adjudicated by the Commissioner as per impugned order referred in para 1, supra. 2.4 Aggrieved by the order of Commissioner, revenue has preferred this appeal. 2.5 Respondents have filed the cross objections to the appeal. 3.1 In their appeal revenue has assailed the order of Commissioner stating- The importer had accepted the classification as proposed and voluntarily paid the differential duty ₹ 92,94,731/- during the course of investigation i.e. prior to the issuance of Show Cause Notice. While upholding the classification as proposed in the Show Cause Notice, the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 28(2B) for appropriation of the amount said to be deposited voluntarily by the respondents, we are not in position to agree with the contentions raised by the revenue. By Act 14 of 2001, sub-section (2B) has been inserted to Section 28 of the Customs Act, 1962 which reads as under : (2B) 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, the person, chargeable with the duty or the interest, may pay the amount of duty or interest before service of notice on him under sub-section (1) in respect of the duty or the interest, as the case may be, and inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under sub-section (1) in respect of the duty or the interest so paid : Provided that the proper officer may determine the amount of short-payment of duty or interest, if any, which in his opinion has not been paid by such person and, then, the proper officer shall proceed to recover such amount in the manner specified in this section, and the period of one year or six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard ld. Advocates and ld. DR and have considered the submissions made. After considering the material it is found. (a) Causes for arriving at penalties under the Customs Act, 1962 and Central Excise Act, 1944 are not similar, inasmuch as the Former Act raises liability to penalty for transgressions and violation of import/export prohibitions without or with Customs duty infringement while the Later Act chiefly concerns itself as a Revenue Generation measure with penalties related consequent to such Revenue Generation effort only. The objectives in provisions of Sections 114A 11AC may be comparable, other penalty provisions e.g. Sections 112 or 114 116 of Customs Act, 1962 are suigeneris. (b) A reading of Section 28 of the Customs Act, 1962, provides for recovery of duties having escaped assessment, Para 2B of which reads as under. .. This would indicate vital consequence flowing as - (i) legislative prescription of the issue of show cause notice on the cut off date by which time, if the duty was paid then no notice was required to be issued/served under the provisions of Section 28(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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