2022 (6) TMI 392 - AT - Customs

100% EOU - Validity of second SCN - invocation of Extended period of Limitation - demand of interest under Section 28 AA of Customs Act - HELD THAT - The second show cause notice is also on the same facts and circumstances. Further, it is found that the amount of interest under Section 28 AA demanded in the earlier show cause notice also, and the same was confirmed in the adjudication proceedings, which is presently subjudice before the Hon ble Rajasthan High Court. Thus, in the present show cause notice, which is mainly for the demand of interest under Section 28 AA and also for a small amount of short tax paid for the same period, is bad for invocation of extended period of limitation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Invocation of extended period of limitation in a show cause notice.

Analysis:
The appeal in question revolves around the issue of whether a show cause notice is defective for invoking the extended period of limitation. The appellant, a 100% Export Oriented Unit (EOU) engaged in manufacturing Automatic Cylinders, imported duty-free aluminum ingots for manufacturing and exporting finished goods. A portion of these ingots was cleared to a sister unit in the Domestic Tariff Area (DTA) during a specific period. The appellant paid various customs duties and cesses in cash and through Cenvat credit. During an audit, it was discovered that certain customs duties were allegedly not paid in cash as required. A show cause notice was issued demanding the alleged shortfall, interest, and penalties. The appellant disputed the interest liability, claiming they had already paid the duty through Cenvat credit. The matter was adjudicated, and demands were confirmed, leading to subsequent appeals.

The Revenue issued another show cause notice for a small amount of short-paid customs duty and interest, along with penalties. The Assistant Commissioner confirmed a truncated demand and penalties. The appellant challenged the show cause notice on the ground of limitation before the Commissioner (Appeals), who rejected the argument, citing delayed payment of duties necessitating interest under Section 28 AA of the Act. The extended period was deemed rightly invoked due to the delay in duty payment. The appeal was dismissed, prompting the appellant to approach the Tribunal.

The appellant contended that the second show cause notice, issued on the same facts and circumstances, was defective for invoking the extended period of limitation. Citing a Supreme Court ruling, the appellant argued against the validity of the notice. The Tribunal, after considering the contentions, found that the second notice was based on the same facts and circumstances as the earlier one. Noting that the demand for interest under Section 28 AA was already subjudice before the High Court, the Tribunal deemed the second notice improper for invoking the extended period of limitation. Consequently, the impugned order was set aside, granting the appellant consequential benefits in accordance with the law.

In conclusion, the Tribunal allowed the appeal, ruling in favor of the appellant based on the improper invocation of the extended period of limitation in the second show cause notice.