9911796707
TMI Blog2007 (2) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the adjudication of violation of conditions of exemption Notification No. 64/88-Cus dt. 1-3-1988. However, an option was given to the applicant appellant to redeem the goods on payment of redemption fine of Rs. 1.50 lakhs. In addition, Commissioner vide his impugned order also confirmed duty of Rs. 58,94,913/- and imposed personal penalty of Rs. 25,000/- on the applicant. The said order was not appealed against by the appellant till December 2006. 2. The appellant s contention, duly presented through their Advocate Shri Anil Balani is that the said confiscated goods were not redeemed by them and as such they were under the bona fide belief that confirmed demand of duty is also not required to be paid by them, it was in these circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation period to expire, the said order had attained finality and any subsequent decision which may have effect on the recovery of duty, will not come to the applicants rescue, inasmuch as, the order having attained finality, is to be effected accordingly. In any case, even according to the subsequent judgment of Bombay High Court, appellants are required to pay duty. As such, there is no justifiable reason for condoning the delay. 4. After appreciating the submissions made by both the sides, we find that Commissioner vide his impugned order has clearly confirmed the demand of duty against the appellant. The payment of the same has nowhere been held by the Commissioner to be dependent upon the appellants exercising their option to redee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of doing so they had chosen not to challenge the same, and in the process, allowed the order to attain finality. 5. Subsequent filing of appeal against the said order after a period of 4 years on the ground that in view of Bombay High Court order, they are legally liable to pay duty, in our views, is not in accordance with the principles of judicial discipline. If the appellants are allowed to challenge the orders after such long gaps, without any justifiable reasons and merely on the ground, that subsequent interpretation of law declared by a courts of law is against them, there would not be any finality to the judicial proceedings. There are number of decisions in the context of refund and unjust enrichment laying down that where refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of Notification No. 24/91-Cus. in respect of additional duty has not been considered. The said letter was replied by the Assistant Commissioner vide his letter dt. 26-9-06 intimating the appellant that inasmuch as they have forfeited their right to appeal before CESTAT, they have to make full payment. The said letter is impugned in the second appeal No. C/3343/06. 8. The appellant s contention is that in terms of the provisions of Section 154 of the Customs Act, the Commissioner was within his jurisdiction to correct clerical or arithmetical mistake. As such, it is their contention that even if the appeal was not filed against the earlier order, their application under Section 154 should have been considered favourably. 9. For be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (P) Ltd. [1987 (27) E.L.T. 590 (S.C.)] laying down that relief not claimed during assessment proceedings by an assessee, Assessing Officer is under obligation to grant statutory relief even if not claimed by assessee. However, we find that as recorded in para 2 of the said judgment there was an appeal by the assessee against the assessment order. However, in the present case there is no appeal against the order of the Commissioner. If the appellant would have challenged the earlier order of Commissioner they were admittedly at liberty to raise the ground of their claim to exemption notification. 11. In as much as, second appeal is only an extended limit of the first appeal and having held that the earlier order had become final and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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