TMI Blog2003 (12) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... rt from the demand of duty under Section 28(1) of the Customs Act, 1962. (v) Whether or not the question of Show Cause Notice was being barred by time under Section 28(1) of the Customs Act, 1962 was irrelevant in as much as the assessment were provisional and therefore the question of limitations under Section 28(1) of the Customs Act, 1962 does not arise. (vi) Whether the Hon'ble CEGAT was correct in applying the judgment in the matter of M/s. Purlux Electric Pvt. Ltd. v. Commissioner of Customs, Mumbai, reported in 2001 138 (E.L.T.) 786 Tribunal, Mumbai to the facts at the case. 2. Briefly stated, the Commissioner of Customs by Order dated 31st January, 2001 has confirmed the Demand of Customs duty amounting to Rs. 68,08,501/- and Rs. 16,08,194/- of Low Ash Metallurgical Coke "in terms of proviso of Section 28(1) of the Customs Act, 1962 and penalty imposed of equal amounts under Section 114A along with penalty of Rs. 25,000/- each on the Respondent-Company and its Director. The basis of confirmation of duty and imposition of penalty is that the Advance Licence produced by the respondent Company was not valid for the import, since the re-validation and the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri.-Mumbai)], Scientific Pharmacy v. Commissioner of Customs, ACC, Mumbai [2001 (135) E.L.T. 1085] and the decision in the case of Commissioner of Customs Mumbai v. Visakhapatnam Steel Plant and others - Order No. C-I/3676-3714/01-WZB/dt. 22-11-2001 [2002 (149) E.L.T. 387 (Tri.)] where the same advance licence along with other advance licences were involved in which the Tribunal followed its earlier decision in Purulax Electric's case (supra). In the circumstances, the Tribunal has held that the extended period of limitation cannot be invoked against the transferee for misrepresentation made by the transferor of the advance licence for import of goods in terms of the Notification No. 203/92. It has also held that in view of the settled position, proviso to Section 28(1) of the Customs Act, 1962 was not attracted against the respondent Company. On the above reasoning, the Tribunal allowed the appeal and set aside the demands as time barred. In the circumstances, the Tribunal has not recorded any finding on the merits of the case. 4. Against this decision, the present reference has been filed by the applicant. This Court issued Notice in the Reference Application on 23rd September, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Supreme Court summarily dismissing the appeals being without merit, is reproduced. Learned Advocate for the respondent submits that on the settled principle of doctrine of merger, the view expressed by the Tribunal on the issue in question in Goodluck Industries' case stands concluded and it is not open for this Court to examine the questions as formulated in the present application. Reliance is placed on the decisions of the Apex Court reported in 2001 (129) E.L.T. 11 (S.C.) = A.I.R. 2000 S.C. 2587 in the case of Kunhayammed and others v. State of Kerala and another, and A.I.R. 2000 S.C. 1623 in the case of V.M. Salgaocar and Bros. Pvt. Ltd. v. Commissioner of Income-tax to support the plea of doctrine of merger. He further submits that there is another good reason why no interference is warranted in the present Reference Application. According to him, the view expressed by the Tribunal in its earlier decision has been allowed to become final by the Department and if that is so, no interference was warranted in such a situation. He submits that nothing has been produced on record even now, in spite of adjournment granted in the past to ascertain as to whether any app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove eligibility for duty free import of permitted goods again once the goods have been imported after endorsement of the transferability of the advance licence by the proper authority and in that event the revenue is debarred from making any inquiry at the stage of import or transferability of the licence. In paragraph 5 of this decision it has been observed that once the proper authority makes endorsement of transfer-ability of the licence, the importer cannot be required to prove once again the eligibility for duty free import of the imported goods. For taking this view, reliance has been placed by the Tribunal on its earlier decision in Nitco Marble Granite Pvt. Ltd. anr. v. CC - 1999 (112) E.L.T. 193 (T) = 1996 (63) ECR 111 (T) Para 4). Both these decisions have been allowed to attain finality by the Revenue. On the above basis, learned Advocate for the respondent contends that it is not open to the applicant/Department to agitate the questions raised in the Reference Application because the said questions are already concluded by the decision of the Supreme court and also because the decisions which have been relied by the Tribunal in the impugned judgment, have been all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Apex Court in Commissioner of Central Excise, Calcutta v. Suntrack Electronics (P) Ltd. (supra). Even for this reason we are not inclined to entertain this reference. 12. In our view it is not necessary for us to examine any other aspect of the matter because the Tribunal has set aside the demand only on the ground that the same was barred by limitation. In other words, any other question except demand being barred by limitation would not arise for consideration out of the impugned order of the Tribunal in this reference proceedings. 13. For the aforesaid reasons, we see no substance in this reference. The same is therefore dismissed. 14. Insofar as the Misc. Civil Application filed by the Commissioner of Customs being Misc. Civil Application No. 537/2003, the same is also dismissed in view of the dismissal of the main reference application. Ad-interim order which was granted earlier to stand vacated forthwith. In view of the above order, no further orders are warranted in Misc. Civil Application No. 691/2003. In the event we were required to examine the said application, we would have accepted the argument of the respondent company that the High Court has no inherent powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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