2019 (7) TMI 911 - AT - Customs

Time Limitation - invocation of proviso to section 28(1) of Customs Act, 1962 - service of notice - classification of goods - HELD THAT - On a perusal of the notice that the first appellate authority found to be sufficient, we observe that this is a summons for document to complete the process of post clearance audit and, that instead of enumerating the documents, an order for recovery was included. This clearly, therefore, is not a notice to show cause as to why the duty allegedly short-paid should not be recovered but is a demand itself. Demand without a notice is legal unsustainable. The show cause notice dated 4th November 2009 does not place on record any of the ingredients warranting invoking of the extended period. Consequently, that show cause notice is barred by limitation. Classification of goods - HELD THAT - The principle of classification is that a declared heading can be unsettled only if the alternative heading proposed by the assessing officer in a show cause notice is found to be appropriate. In the absence of such a finding, the declared heading would have to be the only available substitute which, notwithstanding any doubt of its appropriateness, will remain until unsettled in proper proceedings in accordance with law. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Demand for duty not barred by limitation.
2. Classification of imported goods under Customs Tariff Act.
3. Validity of show cause notice and right to respond.
4. Sufficiency of notice for post-clearance audit.
5. Invocation of extended period for show cause notice.
6. Request for remand of the matter.

Analysis:

1. The judgment revolves around the demand for duty not being barred by limitation. The original authority's order demanding duty for imported goods was set aside by the Commissioner of Customs (Appeals). The issue was whether the demand was within the normal period of limitation. The appellate authority's decision was limited to finding that the demand was not time-barred, as neither the original nor appellate authority considered the issue on merit.

2. The case involved the classification of imported goods under the Customs Tariff Act. The importer had cleared the goods under the risk management system based on a specific classification. However, the post-clearance audit suggested a different classification, resulting in a demand for higher duty. The first appellate authority upheld the revised classification, leading to the appeal.

3. The validity of the show cause notice and the right to respond were crucial aspects of the judgment. The appellant argued that the show cause notice issued was beyond the normal period of limitation and thus invalid. The Hon'ble Supreme Court's rulings emphasized the mandatory requirement of issuing a proper show cause notice under the law for initiating recovery proceedings.

4. The sufficiency of the notice for post-clearance audit was also contested. The appellant claimed that the notice issued was not a proper show cause notice but a demand itself, lacking the essential elements required for a valid notice. The tribunal observed that a demand without a proper notice is legally unsustainable.

5. The invocation of the extended period for the show cause notice dated 4th November 2009 was challenged. The tribunal found that the notice did not fulfill the requirements for invoking the extended period, rendering it barred by limitation. This aspect further supported the decision to set aside the impugned order.

6. Lastly, there was a request for remand of the matter, which the tribunal declined due to the absence of an appeal by the Revenue against the impugned order. The principle of classification dictated that the declared heading could only be unsettled if the alternative heading proposed in a show cause notice was deemed appropriate, which was not the case here. Therefore, the tribunal set aside the impugned order and allowed the appeal based on the aforementioned reasons.

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