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TMI Blog2009 (3) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... on consignment imported by Bills of Entry during the period August, October and November, 2000. It has been found that DEPB scrips purchased by the appellants had been obtained fraudulently by M/s. Beni Exports and M/s. Chugh Exports. Show cause notices dated 14-11-02 and 3rd May, 2002 were issued proposing demand of duty and imposition of penalty. Original authority confirmed demand of duty on the appellants and dropped penalty. Commissioner (Appeals) upheld the adjudication order. 3. Learned Advocate submits that the original authority dropped penalty holding that the appellant is a bona fide purchaser of freely transferable DEPB scrips. So, the demand of duty for the extended period cannot be invoked. He further submits that on id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 28 of the Customs Act, 1962. The original authority confirmed the demand of duty and dropped the penalty holding that the appellant is a bona fide purchaser of freely transferable DEPB scrips and did not know the fraudulent action of M/s. Beni Exports, Jalandhar and in this admitted position, penalty under Sections 112 and 114 of the Customs Act cannot be sustained. The main contention of the learned Advocate is that the demand is hit by limitation. Proviso to Section 28(1) of the Customs Act provides that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to them alone. We are further of the view that notice under Section 28 of the Customs Act could not be issued to the assessee-respondent because a period of six months stipulated by Section 28 of the Customs Act stood already expired and the rights of the parties had been crystallized. The revenue cannot avail the extended period because the assessee-respondent could not be accused of mis-representation, collusion or suppression of facts within the meaning of proviso postulated by Section 28 of the Customs Act. Therefore, there is no merit in this appeal". 6. We also notice that on identical issue in the appellant's own case, the Tribunal vide Final Order dated 14-10-08 set aside the demand of duty for extended period. Learned DR re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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