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TMI Blog2009 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Apex Court in the case of Metal Forgings v. Union of India reported in 2002 (146) E.L.T. 241 (S.C.). He relies on para 10 of the judgment and submits that the show cause notice should indicate the amount demanded and call upon the assessee to show cause if he has any objection for such demand. In absence of the show cause notice on such aspect showing the demand, that amounts to no realisation of the demand from the respondent. 3. To the above submission, learned DR vehemently objects relying on the decision of the Apex Court in the case of Commr. of Cus. (Import), Mumbai v. Jagdish Cancer & Research Centre reported in 2001 (132) E.L.T. 257 (S.C.). He submits that realisation of the duty in respect of confiscable goods is mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime being in force, and shall, in the case of any other goods, give to the owner of the goods, or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in that case the Assistant Commissioner of Customs had issued a show cause notice to show the reason why customs duty amounting to Rs. 64,93,598/- shall not be realized. This is patent from para-3 of reported judgment in 2001 (132) E.L.T. 257 (S.C.). Apex Court in para 11 of the judgment held that sub-sections (1) and (2) of Section 125 together makes it clear that liability to pay duty arises under sub-section (2) in addition to the fine under sub-section (1). Therefore, where an order is passed for payment of customs duty along with an order of imposition of fine in lieu of confiscation of goods, it shall only be referable to sub-section (2) of Section 125 of the Customs Act. It would not attract Section 28(1) of the Customs Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under two different statutes. While Metal Forgings case is under the Central Excise Act, 1944 the case Jagdish Cancer & Research Centre case is under Customs Act, 1962. Learned Counsel submits that in the present case under appeal the show cause notice was not issued under Section 124 read with Section 125 of the Customs Act, 1962 but that was issued under Section 111 of the Customs Act, 1962. Therefore, a misconceived proceeding for realisation of Customs duty was unsustainable. Contention of the learned Counsel has force when the show cause notice was issued for a limited purpose mentioned therein without proposing to realise customs duty, if any, patent from page 5 of the show cause notice itself. 9. On an analysis of the provision con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, no such notice was issued to the Respondent. Therefore, Revenue's grievance that duty shall be payable cannot be answered affirmatively. 11. It may be stated that if the appeal of Revenue is canvassed to be a case of realisation of duty as well as confiscation with option given for payment of redemption fine in lieu of fine, the learned Commissioner who had issued show cause notice on 28-11-2007 should have taken benefit of decision of Apex Court in the case of Jagdish Cancer and Research Centre decided on 2-8-2001 decision in the case of Metal Forgings decided on 22-11-2002. But he has not taken at all any care as to the recovery of the duty in the present case. Therefore, learned Chairman of Central Board of Excise & Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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