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TMI Blog1997 (5) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents contested the said demand. On 3-12-1993, the Assistant Commissioner sought to re-classify the impugned product under Heading 21.06 and raised a fresh demand for Rs. 1,31,268/-. The respondent contested this demand also and the correspondence between the respondent and the lower authority continued. The respondent asked for personal hearing which was granted on 22-9-1994. However, on 17-10-1994 a formal demand notice was issued by the department reiterating the earlier demand vide letter, dated 3-12-1993. This demand was confirmed on 8-3-1995. In the facts and circumstances of the case, the respondent have pleaded that the demand of the department made for the first time on 3-12-1993 with reference to the Chapter Heading 21.06 was, ab initio, hit by limitation as the provisional assessment upon execution of a test bond should be deemed as finalised on 27-1-1993 when the first demand was issued for Rs. 55,939/- on the basis of finalisation of assessment under Heading 35.07. It is also pointed out that the test bond valid for 3 months had expired in March, 1991 and was never extended or revalidated. On merits also, the respondent contested the findings of the department t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable based on the opinion of Chemical Examiner, by virtue of provisional cum test bond which is yet to be cancelled. Importers should have extended the validity of the bond till the date of final assessment and Commissioner (Appeals) setting aside the O-in-O on grounds of limitation is untenable." 6. The learned SDR for the department Shri Victor Thyagaraj reiterated the grounds of appeal. It was his contention that the letter, dated 27-1-1993 as well as 3-12-1993 are only a support for the demand in this case. The date of final assessment should be taken as 8-3-1995. He pointed out that the whole issue is still alive till 8-3-1995. He also pointed out that the bond executed by the respondent was not cancelled. He also pointed out that the whole issue is alive and is liable for final assessment based on classification and appropriate duty applicable had to be demanded based on the opinion of the Chemical Examiner by virtue of provisional cum test bond which is yet to be cancelled. He, therefore, stated that the orders passed by the Commissioner (Appeals) is not legal. 7. The learned Chartered Accountant appearing for the respondent contended before us that it was becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted. Explanation. - Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of one year or six months or five years, as the case may be. (2) Proper officer, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), shall determine the amount of duty due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) For the purpose of sub-section (1), the expression relevant date means - (a) in a case where duty is not levied, the date on which the proper officer makes an order for the clearance of the goods. (b) in a case where duty is provisionally assessed under Section 18, the date of adjustment of duty after the final assessment thereof; (c) in a case where duty has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty." It is seen that as per Section 28 Clause(3)(b), the relevant date means in a case where duty is provisionally assessed under Section 18, the date of adjustment of duty after the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy, then that will be the date of final assessment. 10. The letter, dated 27-1-1993 which is at page-32 of the paper book reads as follows : Sub : Import of Nyfoama DSN I.M. No. 1158/90 Line No. 10 - B.E. No. HD 1201302, dated 13-12-1990. Please refer to the goods imported under cover of the bill of entry cited above. The imported goods were assessed under Heading 0404.90 @ 55% + 45% under notification 18/90 and CVD at nil rate of duty, whereas the goods are assessable @ 60% + 45% under Heading 35.07 and CVD @ 15% + 5% SED as the test report reads as follows : Sample is in the form of Cream Coloured Powder. It is an enzyme preparation . The net resultant short collection of Rs. 55,939/- may be made good immediately failing which the test bond executed will be enforced to recover the amount." There is no other material to show final adjustment date. It is also not alleged in the appeal that this is not the final adjustment date and no other material to controvert this fact is produced by the department in this case. In such circumstances no materials are brought to our notice to interfere with the impugned orders on this regard. It is seen that as per this letter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment of the goods, from the communication dated 27-1-1993 it is clear that they sought to finalise assessment under Heading 35.07. Therefore, the relevant date for the purpose of issuing demand notice within 6 months should be taken as 27-1-1993. The Department was entitled to change the classification and to raise a fresh demand for higher duty within 6 months from the aforesaid date viz., 27-1-1993. Unfortunately in this case the Department issued a fresh demand in a letter form on 3-12-1993 i.e. after about 11 months of the relevant date and later a formal demand was issued on 17-10-1994 after about one year and 9 months. Thus, there is no doubt that in the given facts and circumstances of the case, the subject demand notice issued on 17-10-1994 as also the letter-demand on 3-12-1993, were both hit by limitation. I do not, therefore, consider it necessary to go into the merits of the demand. 11. In our view the above said findings of the Commissioner is in consonance with the provisions of Section 28 read with Section 18 of the Customs Act and no grounds are made out to interfere with the same. In the result, there are no merits in the appeal and the same is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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