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TMI Blog2021 (12) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962. She therefore prayed for transfer of the matter to the Single Member Bench. Accordingly, the Division Bench transferred the matter before the SM Bench and it was taken up for hearing. 2. The Ld. Counsel Ms. A. Aruna appeared and argued the matter for the appellant. She adverted to the show cause notice and argued that the show cause notice is issued under Section 124 read with Section 28 of Customs Act, 1962 and the duty demand is raised under Section 28 (4) of the Customs Act, 1962. Though appellant filed Bill of Entry through their Customs broker for clearance of the imported cargo, the goods were not cleared or redeemed by the appellant. She submitted that Section 28 can be invoked only when the goods are cleared. When duty dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of different brands such as Gucci, Armani, Tommy Hilfiger, Burberry and Lacoste, Mobile back cover, Earphones, USB Multi-charging cables, Car Armrest, Power Bank PCB, Fabric Bales, Stainless Steel saloon, Chair accessories and Car accessories. It appeared that the goods have been deliberately undeclared to evade payment of Customs duty. Some of the undeclared goods were branded and involved infringement of IPR Rules; seizure mahazar was drawn and the goods were seized under Section 110 of the Customs Act, 1962. Show cause notice was issued to the appellant under Section 124 read with Section 28 of the Customs Act, 1962. The original authority after due process of law, has redetermined the value of the goods at Rs. 67,03,746/-. A differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty. Merely because the appellant has abandoned the goods, the infractions committed by the appellant or the duty confirmed cannot be done away with. He referred to the provisions of Section 28 as well as Section 17 of the Customs Act, 1962. Section 28 of the Customs Act, 1962 can be invoked when there is suppression of facts. The appellant having given up the contest with regard to valuation and confirmation of duty has no grounds for seeking the waiver of penalty. The contention of the Learned Counsel that reassessment has to be done under Section 17 (5) is not applicable to the facts of the case as there is wilful suppression of facts and misdeclaration of the goods. The demand raised under Section 28 (4) is proper. He prayed that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porter or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. [emphasis supplied] 11. Sub-section (1) and (4) of Section 28 of the Customs Act, 1962 read as under : "SECTION 28. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) Where any duty has not been levied or not paid or has been short-levied or short-paid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so 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." 12. Sub-section (4) of Section 17 provides that if the assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, reassess the duty on the goods. It is expressly and specifically stated in sub-section (4) that the reassessment under Section 17 is without prejudice to any other action which may be taken under the Act. When there is suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents is dismissed. Proceedings pursuant to the show cause notices under Sections 28 and 124 shall continue. The respondents shall have the opportunity therein to place such evidence as they may deem appropriate." In the present case, the appellant has been allowed to redeem the goods on payment of payment of duty. The appellant has later at the time of hearing of the appeal opted to abandon the goods. This does not in any way absolve the allegations of misdeclarations confirmed and upheld by the impugned order. The appellant imported prohibited goods which were absolutely confiscated. The goods which were allowed to be redeemed were also found to be undeclared / misdeclared for which penalty is imposable under Section 114A o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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