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TMI Blog1987 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 28-9-1981 and D14, dated 3-2-1982. Further question is whether the demands raised against the respondent is barred by limitation under Section 28 of the Customs Act, 1962. 2. Two consignments of Di-Ammonium Phosphate were imported and cleared from customs without payment of duty on the strength of Notification No. 144/80, dated 19-7-1980. Out of this quantity a shortage of 728.900 MT approximately of Di-Ammonium Phosphate was detected and report of the same lodged with Malia-Miyana Police (page 17 - Annexure 6 of the Paper Book). The Customs then issued show cause notice, dated 22-3-1983 calling upon the respondents to show cause why duty amounting to Rs. 17,83,287.38 on the quantity of 728.900 MT of Di-Ammonium Phosphate be not realised f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re stolen after clearance from the Customs. He argued that had the goods not been stolen they would have been used as manure as contemplated in exemptions. "Section 13 of the Customs Act, 1962 is only applicable to goods which are leviable to duty on importation. Obviously the provisions of the Section 13 are not applicable to goods which are not leviable to any duty on their importation as is the fact in this case". With this reasoning he admitted the appeal and set aside the demand. Aggrieved with this decision the Collector of Customs, Rajkot has filed this appeal to the Tribunal. 4. At the hearing of the appeal Shri A.K. Rajhans, J.D.R. argued that the respondents were allowed duty free clearance on the strength of exemption noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The conditions of the notification should therefore be held fulfilled. He urged for dismissal of the appeal. 6. We have carefully considered the submissions made by the parties. As for Shri Chandrasekharan's contention that demand is barred by limitation, the contention cannot be accepted. It is at this stage necessary to refer to Notification No. 144/80-Cus dated 19-7-1980 which superseded Notification No. 177-Cus, dated 2-8-1976. The same is reproduced below : "144/80 dated 19-7-1980 In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Department of Revenue and Banking, No. 177 Customs, dated the 2nd August, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of such quantity of Di-Ammonium Phosphate as on is not proved to the satisfaction of the Asst. Collector of Customs, to have since been used for the said purpose an amount equal to the duty of customs leviable thereon under the first schedule of Customs Tariff Act, 1975 on such quantity". This portion of the bond and the notification reproduced above leave no manner of doubt that the assessment in the respondents case was provisional assessment of duty under Section 18 of the Customs Act, 1962 and clause (b) of sub-section (3) of Section 28 is clear that relevant date for computing limitation is the date of adjustment of duty after the final assessment thereof. It is nobody's case that final assessment in the present case had been made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs after referring to Section 13 and 23(1) of the Customs Act and arguing that the Act itself envisages losses due to theft etc., state "The only difference in this case is that the goods were stolen after clearance by the Customs. It may, however, be mentioned that though technically cleared by the Customs, the Cargo continued to be stored and remain in the port godowns within the Navlakhi Port area under the jurisdiction of the Customs and the Port and not outside the Port. The Assistant Collector ought to have used the powers conferred on him justly taking into account the facts of the case, particularly where no negligence by the Importer had been proved and taking into account the above statutory provision." In view of this adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is an admitted position, no further investigation for raising demand was necessary. We reject this argument. 10. There could be an argument that the present demand is premature and question of raising any demand against the respondents would arise only when final adjustment of duty in terms of the notification and bond takes place. It is not clear whether final adjustment as to the entire imported quantity by the two consignments has taken place or not, there being no material on record on this aspect. This, however, does not affect the present case because the order of the Assistant Collector which we propose to restore takes adequate care of the situation inasmuch as it says that if the quantity be available the respondents could make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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