TMI Blog1996 (10) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the part of the assessee to deceive the Government or induce the authorities to release the goods notwithstanding the expiry of the period of the exemption notification. The Tribunal notices that there is no active concealment: it rightly states that suppression envisages a deliberate and conscious omission to state a fact with the intention of deriving wrongful gain. the presentation of the Manifest to the Customs Authority could be effected before or after the arrival of the vessel and in the instant case the Manifest had been effected after the arrival of the vessels. Therefore, the authorities were also aware that the vessel had arrived after 31st December, 1983, the last date for availing of the benefit of the exemption notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls were presented on prior entry basis on three different dates in December, 1983 as mentioned above but since the three vessels entered the Port of Calcutta on the respective dates in January, 1984 the bills of entry are deemed to have been presented on the dates of actual entry of the vessels. Now as the validity of the Notification No. 243/81, dated 13-11-1981 as amended by the subsequent two Notifications had come to an end on 31st December, 1983, the period not having been extended, the importers were not entitled to exemption from duty under Section 15(1) of the Customs Act. It appears that when this fact came to the notice of the Customs Department the Assistant Collector of Customs, Calcutta, issued two demand notices dated 27th and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact regarding entry of the vessels and clearance of the goods after expiry of the notification and as a result the short levy has occurred. Accordingly, under the proviso to Section 28(1) of the Customs Act, 1962 the notices have been issued in time and are not ultra vires as stated by you. You are accordingly again requested to make payment of the short levied amount. However, you may approach the Assistant Collector of Customs for a hearing in this matter if you so desire." It will be seen from the above statement made in the notice of 22-7-1985 that what was reiterated was that the assessee should make payment as per the demand notices, as those demand notices were within the period of limitation and were not ultra vires as con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of suppression of facts the proviso would be attracted and the period of limitation would stand extended to five years. Therefore, when it was realised that so far as the two demand notices were concerned they were beyond the period of limitation prescribed by Section 28(1)(b) of the Customs Act, the Deputy Collector of Customs issued a notice dated 22-7-1985 in which for the first time the allegation in regard to suppression of facts came to be made. On the basis of that notice, it was stated that the two demand notices dated 27th and 28th December, 1984 were within time. It is interesting to note that even by this Notice dated 22-7-1985 what was sought to be done was to relate back the matter to the two demand notices and overcome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s incumbent on the part of the Department to issue a show cause notice and thereby give the assessee an opportunity to make his representation as is envisaged by Section 28(2) of the Customs Act. It is a condition precedent. Instead of following that procedure the Department followed the circuitous method and left it to the assessee to approach the Assistant Collector of Customs, if he so desired. We are, therefore, of the opinion that the communication of 22-7-1985 could hardly be described as a show cause notice under Section 28(1) of the Customs Act. 5. The Tribunal has by the impugned order come to the conclusion and rightly in our opinion, that the communication of 22-7-1985 does not purport to be "a show cause notice" and the two de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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