TMI Blog2008 (10) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... lants that a demand following findings different from the assessment order could not be made without following the procedure of review under Section 131 of the Customs Act, 1962 – Held that it is case of short payment of duty – this case is not of non-payment of ADD– further SCN is beyond normal period of limitation – Demand u/s 28 is not maintainable – Appeal allowed - C/171/2006/MAS - 1214/2008 - Dated:- 24-10-2008 - Shri P. Karthikeyan, Member (T) Shri S. Mohamed Ismail, Advocate, for the Appellant. Smt. R. Bhagya Devi, SDR, for the Respondent. [Order]. - M/s. J.N. Textiles, Bangalore imported a consignment of 'Mulberry raw silk' and sought clearance of the same under Bill of Entry No. 641711, dated 15-6-04. The consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty short paid. Therefore, the relevant date applicable was that prescribed in clause (d) of sub-section 3 of Section 28 of the Act. As duty had been paid on 8-7-04, demand notice to recover ADD not collected had to be issued within six months of 8-7-04. The impugned demand was barred by limitation. (ii) The grade of the imported silk was declared as 4A since the appellants had placed order for Mulberry raw silk of grade 4A. The Certificate of Inspection and Quarantine issued by the competent agency of the Government of Peoples Republic of China (PRC) had declared the goods as of grade 4A. In the circumstances, allegation of misdeclaration with intent to evade payment of duty could not be raised against the appellants. (iii) The certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PRC as correct. Relying on the following case law, ld. Counsel argues that in the facts and circumstances of the case misdeclaration could not be alleged against the importer. (a) Shree Ganesh International v. CCE, Jaipur [2004 (174) E.L.T. 171 (Tri.-Del)] wherein the Tribunal held as under:- "8. We, however, agree with the learned Advocate that the impugned goods are not liable for confiscation. It has not been denied by the Revenue that the appellants have made the declaration on the Bills of Entry on the basis of documents received by them from their foreign suppliers. The test report of the foreign supplier is dated 9-8-2003 which clearly mentions that the goods are non-texturised fabrics. They have also claimed that a similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of the importer addressed to the indenting agent, misdeclaration by importer could not be alleged. That the test report showed a different grade from that was declared did not establish misdeclaration by the importer. (c) In Vaibhav Textiles v. CCE, Kolkata [2007 (214) E.L.T. 408 (Tri.-Kolkata)], relying on the ratio of Shri Ganesh International (supra), the Tribunal concluded that the appellants therein had acted on bona fide belief based on the import documents received from the foreign suppliers and the importer could not be penalized on a finding of misdeclaration. (d) In Bansal Industries v. CC, Chennai [2004 (175) E.L.T. 449 (Tribunal) = 2004 (62) RLT 441 (CESTAT-Chen.)], it was held in this case that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department had failed to levy anti-dumping duty and therefore the relevant date was as provided in clause (a) of sub-section 3 of Section 28. 5.1 In the instant case, demand notice was issued beyond six months of the, date of payment of duty. Therefore, unless the larger period is invokable, the demand is barred by limitation. In the instant case, the importer himself came forward to pay the differential duty compared to the declared value as US Dollar 27.97 per kg as fixed in Notification No.106/03-Cus. even before the test results were received showing that the goods were of 2A grade. Therefore the lower authorities concluded that the importer was aware that the grade had been misdeclared. The importer had declared the consignment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, from the facts of the case, I find that the appellant had not misdeclared the description of the imported goods when it filed declaration as per its purchase order and, invoice, packing list and inspection report of the supplier. 5.4 Commissioner (Appeals) held that clause (d) of Section 28(3) of the Customs Act applied to raise demand in the instant case as there was non-levy of anti dumping duty. This finding is incorrect. Clause (d) of Section 28(3) of the Act applies where there is non-levy of duty. In the instant case there was short levy on the goods owing to non-levy of ADD. It is not as if the non-levy referred to in the above said clause envisages individual non-levy under various Acts such as basic Customs duty, CVD e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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