2018 (9) TMI 270 - AT - Customs

Extended period of Limitation - Section 28 of the Customs Act 1962 - Valuation - various electrical switch gear products - section 4A of Central Excise Act 1944 - Held that - The proceedings initiated against the respondent under Central Excise Act 1944 was settled by the decision of the Hon ble High Court of Bombay against them in 2008 and can be said to have attained finality only then. That the decision of the Hon ble High Court of Bombay upheld the contention of the investigating authority does not in any way dilute the existence of a dispute which had to be resolved by judicial process - scope for alleging suppression misrepresentation or any of the other qualifications to justify the invoking of the extended period does not exist - appeal dismissed - decided against Revenue.

Issues:
1. Appeal against order-in-original regarding import of electrical switch gear products and assessment of additional duty.
2. Invocation of extended period under section 28 of the Customs Act, 1962.
3. Dispute on coverage under the Standards of Weights and Measurement Act, 1976.
4. Differential duty assessment and grounds for appeal.
5. Change of interpretation affecting the extended period under section 28.
6. Allegation of avoidance of assessment under section 4A of Central Excise Act, 1944.
7. Settlement of proceedings under Central Excise Act, 1944 by the High Court of Bombay.
8. Existence of a dispute justifying the invoking of the extended period.

Analysis:
The appeal before the Appellate Tribunal CESTAT MUMBAI concerns the dispute arising from the import of electrical switch gear products and the assessment of additional duty. The Revenue filed the appeal against the order-in-original of the Commissioner of Customs (Import), JNCH, which dropped proceedings invoking the extended period under section 28 of the Customs Act, 1962. The issue revolved around the assessment of additional duty on the declared value rather than the retail selling price applicable under section 4A of the Central Excise Act, 1944. The dispute stemmed from the coverage of switch gear products under the Standards of Weights and Measurement Act, 1976, which was resolved by the High Court of Bombay in earlier orders.

The Revenue contended that a change of interpretation regarding the assessment placed the dispute beyond the scope of conditions precedent for invoking the extended period under section 28. The respondent argued that the notifications issued under section 4A of the Central Excise Act, 1944 were not avoided and that the adjudicating authority did not invoke the extended period despite being made aware of the facts. The appeal challenged the decisions cited by the adjudicating authority, highlighting discrepancies and lack of conformity on facts.

The Tribunal noted that the differential duty was sought for a period beyond the normal prescribed under section 28, considering the respondent's knowledge regarding the assessment under section 4A of the Central Excise Act, 1944. The settlement of proceedings under the Central Excise Act, 1944 by the High Court of Bombay in 2008 was deemed to have attained finality, indicating the existence of a dispute that needed judicial resolution. Consequently, the Tribunal found no merit in the Revenue's appeal and dismissed it, emphasizing the lack of grounds for invoking the extended period based on the circumstances and legal interpretations presented during the proceedings.

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