TMI Blog2006 (2) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME COURT] . Therefore, as rightly held by the Tribunal, if the contention of the appellant's counsel that when the goods were already cleared, no demand notice can be issued u/s 28 of the Act is accepted, we will be rendering the words where any duty has been short-levied as found in Section 28(1) of the Act as unworkable and redundant, inasmuch as the jurisdiction of the authorities to issue notice u/s 28 of the Act with respect to the duty, which has been short-levied, would arise only in the case where the goods were already cleared. In view of the clear finding with regard to the mis-declaration and suppression of value, which led to the under-valuation and proposed short-levy of duty, we do not see any lack of jurisdiction on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Bench of the Tribunal, wherein it is held that the provisions of confiscation and imposition of redemption fine would not apply in respect of goods that were already assessed and cleared on payment of duty out of Customs charge? 2. During the course of arguments, the learned counsel appearing for the appellant seeks to modify the first question of law with regard to the Section, that instead of Section 28A, it may be read as Section 28(1) of the Customs Act. Permission granted and the first question of law can be read as hereunder :- (1) Whether the Tribunal was right in holding that the order of assessment on which no Appeal was preferred, can be reopened by issue of a fresh Show Cause Notice under Section 28(1) of the Customs Act, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes and not for evasion of duty. However, the Commissioner refused to accept the explanation offered by the appellant and held that the charges of mis-declaration and suppression of facts for the duty short-levied stand proved, in view of the parallel invoices indicating higher prices of the imported goods and the cost analysis statement seized from the premises of the appellant themselves. Since the imported goods, which were under-valued and were already allowed clearance, were liable to be confiscated, the Commissioner imposed a fine of Rs. 6.8 Lakhs in lieu of confiscation and also imposed a penalty of Rs. 6 lakhs under Section 112 (a) of the Act with a further demand of differential duty of Rs. 24,43,415/- under Section 28 (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bills of Entry; and (ii) parallel invoices which have been issued after the date of filing of the Bills of Entry. Considering the above two categories of parallel invoices, the Tribunal rightly held that the parallel invoices issued after the date of filing of the Bills of Entry could not be related to the goods imported under those Bills of Entry and therefore, had directed the adjudicating authority to take into consideration the parallel invoices which have been issued prior to the filing of the Bills of Entry alone. It was further made clear that in the case of the parallel invoices which were issued after the date of filing of the Bills of Entry, the declared value would be accepted and accordingly, the Tribunal remitted the matter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that a show cause notice under the provisions of Section 28 of the Act for payment of customs duties not levied or short-levied or erroneously refunded can be issued only subsequent to the clearance of the goods under Section 47 of the Act vide Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)]. Therefore, as rightly held by the Tribunal, if the contention of the appellant's counsel that when the goods were already cleared, no demand notice can be issued under Section 28 of the Act is accepted, we will be rendering the words where any duty has been short-levied as found in Section 28(1) of the Act as unworkable and redundant, inasmuch as the jurisdiction of the authorities to issue notice under Section 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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