2008 (7) TMI 745 - AT - Central Excise

Demand - non-challenge of Assessment order - Held that - It is the fact the Bills of Entry were finally assessed by the authorities and duty liability was discharged by the respondent. Subsequently, short levy demand under Section 28 has been raised from the appellant, which is unsustainable on the ground that the assessment of the said B.O. Entry has not been challenged by the authorities - since the Revenue has not challenged the assessment of the Bills of Entry, the impugned order, vide which the Order-in-Original has been set aside is correct and does not suffer from any infirmity - appeal dismissed - decided against Revenue.

Summary

Issues:
Re-classification of imported items, short levy of duty, applicability of Section 28 of the Customs Act, validity of show cause notice timing.

Analysis:
The case involved a dispute over the re-classification of items imported by the respondent, including suction valve, discharge valve, and Gas pump assembly. The respondent initially classified these items under specific Chapter headings when clearing them under Bond to a private Bonded Warehouse in Aurangabad. Subsequently, after seeking clearance by filing Ex-Bond Bills of Entry, the respondent faced allegations of wrong classification by the Revenue, resulting in a short levy of duty amounting to Rs. 16,28,724. The adjudicating authority confirmed the short levy, but the learned Commissioner (Appeals) later set aside this decision and allowed the appeal of the respondent.

The key contention revolved around the Revenue's right to seek duty from the assessee through show cause notices under Section 28 of the Customs Act. The learned SDR argued that the Revenue could issue such notices even after the final assessment of Bills of Entry if wrong classification led to a short payment of duty. However, the learned Counsel for the respondent cited a Supreme Court decision (Priya Blue Industries Ltd. v. CC) to support the argument that demand under Section 28 cannot be raised if the Revenue has not challenged the original assessment by the authorities.

The Appellate Tribunal, in its analysis, agreed with the findings of the learned Commissioner (Appeals) that the show cause notice issued after 8 months was invalid. The Tribunal emphasized that the Revenue's failure to challenge the assessment of Bills of Entry rendered the subsequent short levy demand under Section 28 unsustainable. Citing the precedent set by the Supreme Court in the Priya Blue Industries case, the Tribunal concluded that the impugned order setting aside the Order-in-Original was correct and devoid of any legal flaws. Consequently, the appeal filed by the Revenue was rejected, affirming the decision in favor of the respondent.

In conclusion, the judgment highlighted the importance of adhering to legal procedures and timelines in matters of duty assessment and levy, emphasizing the significance of challenging assessments promptly to maintain the validity of subsequent demands under the Customs Act.