TMI Blog2021 (12) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid Act. Even if the Appellate Commissioner does not accept the contention of the petitioner, the petitioner is not remedyless. The petitioner can recover the same from the 2nd respondent in accordance with the provisions of the Sale of Goods Act, 1930. The writ petition is liable to be dismissed and it is dismissed. - W.P.No.17844 of 2021 And WMP.No.19054 of 2021 - - - Dated:- 9-11-2021 - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.Joseph Prabakar For the R1 : Mr.Umesh Rao.K. Standing Counsel. For the R2 : Mr.Karthik Sundaram ORDER The petitioner has challenged the impugned order in Original No.83811/2021 dated 04.2021 of the first respondent . 2. By the impugned order, the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential duty along with interest and penalty from the petitioner. 6. It is submitted that the said SCN was without jurisdiction. Thereafter, the 1st respondent passed order in Original No.83811/2021 dated .4.2021 in which the first respondent confirmed differential customs duty of ₹ 16,67,121/- under Section 28(4) of the Customs Act, 1962 along with the interest and penalty. Hence the petitioner has been filed the present writ petition before this Court. 7. The learned counsel for the petitioner submits that the order has been passed contrary to well settled principle of law in the case of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay, 1995(75)E.L.T.721 (S.C.). In this connection, a reference was made to para 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner further submits that there was no mis-statement or misdeclaration by the petitioner at the time of import. The learned counsel further submits even though the first respondent has admitted that there is no wilful suppression of facts, yet has justified the invocation of the extended period of limitation under Section 28(4) of the Customs Act, 1962. The learned counsel therefore, submits that the writ petition has to be allowed. 10. Appearing on behalf of the respondents, the learned counsel for the respondents submits that the petitioner hs not an alternate remedy by way of appeal under Section 128 of the Customs Act, 1962 and therefore the petioner should work out a remedy under the aforesaid Act and therefore the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The proviso to Section 11 A read as under:- Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder, with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words Central Excise Officer , the words Collector of Central Excise and for the words six months the words five years were substituted . 14. Section 28(4) of the Customs Act, 1962, which has been invoked in the present case reads as under:- (4) Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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