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TMI Blog2006 (7) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Advocate, appeared for the appellants and Shri Ganesh Havanur, the learned SDR, for the Revenue. 3. The learned Advocate pointed out that certain errors apparent on the face of the record have crept into the above said Final Order. They are as follows ;- (i) Actually, the demand of duty amounts to only Rs.75,78,417 /-.This amount in para 1 of the Order has been indicated twice resulting in double demand of this amount. Actually, there was only one demand, which the Commissioner held payable in the order impugned in Appeal C/60/2005. The demand was actually quantified by finalisation of assessment. Therefore, the demand of duty against both the appeal Nos. should be Rs.75, 78,417/- only. (ii) At para 4, the Hon'ble Bench w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proviso to Section 28 (1) is applicable at all, when the Commissioner has given clear finding that there is no evidence of the importer or his agent or his employee being involved in the fraud. No demand could have been confirmed under that provision. Knowing this position of law, the Commissioner has instead, directed 'finalisation' of provisional assessment. (ii) On the date of the impugned order, the assessment was no longer provisional (31-12-2004). (iii) In the proceedings before the Commissioner of Customs, provisional assessment was not an issue or allegation. The order has traversed beyond the notice. (iv) In view of the clear finding of non-involvement of importer in the fraud by the original authority, the proviso to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been pending since the investigation into forged licences by the department was in progress. Therefore, the contention of the learned Advocate that the assessment was not provisional on the date of the impugned order is not correct. Moreover, in para 8 of the impugned order, we have recorded the submission of the learned Advocate in the following manner :- "Shri B. N. Gururaj, learned advocate who appeared for the appellants emphasized the point that the assessments were kept provisional mainly for the production of original Bill of Lading, which was produced even on 12-3-2003 Afterwards, there was no reason for the Department to keep the provisional assessment pending." This shows that the learned Advocate did not dispute the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a bona fide manner. However, once the Department comes to know that the appellants had cleared goods without payment of duty on the strength of forged DEPB scrip, is it not the responsibility of the Revenue officer to take measures immediately to recover the revenue. lost? Why should the exchequer be deprived of its legitimate dues for the reason that the appellants had been defrauded by a third party. When the Commissioner came to know that the DEPB scrips were forged, he had recorded a finding in the Adjudication Order that the appellants had not discharged the duty liability at the time of import. This fact cannot be disputed in the light of the investigations conducted into the DEPB scrip submitted at the time of import. Since the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of "alternative remedy", since the root principle of law married to justice, is ubi jus ibi remedium." Just as it is not proper for public bodies and Government to keep the wrongly recovered money on technicalities, private individuals also should not benefit illegally and plead that they be absolved from payment of the legitimate dues to the Government on mere technicalities. In the present case, there is absolutely no doubt th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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