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TMI Blog2003 (9) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the goods by exporting under DEEC Scheme which was not mentioned in any of the shipping bills that the exports were made under export obligation under EPCG Scheme. The second allegation against the appellants are that on detailed investigation and scrutiny it was found that the appellant had paid to the supplier of the machinery technical know-how fees which had not been added to the assessable value. On this two points show cause notice was issued. However as pointed out by the Consultant that the show cause notice does not refer to Section 28 of the Act but refers only to Section 111(m) and 111(o) of the Customs Act. However the Chief Commissioner has proceeded to order for confirming of demands in terms of Section 28 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they contend that in any event the service charges are post-operative charges and they are not required to be added in the assessable value to an extent of DM 16.00 lakhs. In this regard, they relied on the following judgments : (a) Daewoo Motors India Ltd. v. CC, New Delhi - 2000 (115) E.L.T. 489 (b) Tata Timken v. CC, Calcutta - 2001 (127) E.L.T. 772 (c) Tata Iron and Steel Co. Ltd. v. CCE & CC, Bhubaneshwar - 2000 (116) E.L.T. 422. 3.It is their grievance that all the points and grounds have not been considered by the Chief Commissioner including the judgment cited and therefore the matter has to go back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given effective and duty liability has to be worked out in terms of the said notification. It is his submission that the plea for benefit has to be considered afresh and duty computation is not correct. 5.SDR submits that notwithstanding Section 28 has not been invoked by the Commissioner and the goods are liable for confiscation for non-fulfilment of the notification. She relies on the judgment rendered by the Apex Court in the case of CC (Import), Mumbai v. Jagdish Cancer & Research Centre as reported in 2001 (132) E.L.T. 257 (S.C.) wherein the show cause notice for confiscation and for imposition of fine was upheld and it was held that demand of duty can be confirmed under Section 125 of the Customs Act when the goods have become confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR pointed out to the Apex Court judgment for confirming of demands including duty under sub-section (2) of Section 125. This has to be re-examined after hearing the appellant. We have also gone through the records and notice that the appellant claim for non-inclusion of service charges in the light of the judgment as noted above has not been considered. Their contention is that the service charges are post-operative charges which has been included in the assessable value which according to the Consultant is not required to be included. This aspect of the matter is required to be examined afresh. Further invocation of Section 114A and imposition of penalty is not justified. The import had taken place much earlier to the date of promulgation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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