2018 (8) TMI 1525 - AT - Customs

Liability of SAD - Benefit of N/N. 85/2004 dated 31.08.2004 - short paid duty - Held that - The appellants do not have a case that they are eligible for the benefit of notification claimed by appellants. Subsequent to assessment and out of charge of the goods, the assessing officer found that the conditions of the notifications are not fulfilled and that appellants are liable to pay SAD - Section 28 empowers the Department to demand the short paid duty - appeal dismissed - decided against appellant.

Issues:
1. Eligibility for exemption from special additional duties under notification 85/2004.
2. Validity of the demand notices issued by the department.
3. Interpretation of Section 17(4) of the Customs Act, 1962 regarding re-assessment of duty.
4. Applicability of the decision in the case of Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd.
5. Interpretation of the Tribunal's decision in Venus Enterprises vs. C.C.E., Chennai.

Eligibility for Exemption:
The case involved M/s. Jaipur Gems, Chennai, importing goods under notification 85/2004. The department initially accepted the claim for exemption from special additional duties under SL. No. 1 of notification 20/06. However, later, it was discovered that the goods imported were not eligible for exemption as per the proviso 3 to the notification. The department issued demand notices for the differential duty, leading to an appeal. The appellant's argument that the Department cannot raise a demand alleging ineligibility for the exemption when the assessment was not challenged was rejected. The Tribunal found that the appellants were indeed liable to pay the special additional duty as the conditions of the notifications were not fulfilled.

Validity of Demand Notices:
The department issued demand notices for the payment of the differential duty after discovering the ineligibility for exemption. The appellants paid the duty along with interest and requested a speaking order to file an appeal. The Commissioner (Appeals) upheld the demand, leading to the current appeal. The Tribunal found that Section 28 empowers the Department to demand the short paid duty, and there was no merit in the appellant's contentions regarding the validity of the demand notices.

Interpretation of Customs Act, 1962:
The Ld. AR argued that under Section 17(4) of the Customs Act, 1962, if self-assessment is found to be incorrect, the officer can re-assess the duty on the goods. Referring to the case law, it was highlighted that the proper officer can issue demand notices without reviewing the original assessment order. The Tribunal considered this argument in the context of the present case and found that the Department was within its rights to demand the short paid duty based on the re-assessment.

Applicability of Legal Precedents:
The appellant relied on the decision in the case of Collector of Central Excise, Kanpur vs. Flock (India) Pvt. Ltd. to support their argument against the demand for payment of differential duty. However, the Tribunal did not find this precedent applicable to the current situation, as the facts and legal provisions differed from those in the cited case.

Interpretation of Tribunal's Decision:
The Ld. AR referred to the Tribunal's decision in Venus Enterprises vs. C.C.E., Chennai, to support the Department's authority to issue demand notices without reviewing the original assessment order. The Tribunal considered this interpretation in the context of the present case and found that the Department's actions were in line with the legal provisions and precedents cited.

In conclusion, the Tribunal dismissed the appeal, upholding the Department's demand for the payment of the short paid duty based on the re-assessment of the goods and the ineligibility for the claimed exemption.

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