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TMI Blog2012 (12) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported by the appellant was kept as such in their premises over a period of two years. The officers of the Special Investigation and Intelligence Branch visited the premises and found that the engine has not been used for manufacture or servicing of any aeroplane. The appellant explained that the engine was kept for repairs and subsequent re-export to the supplier. After completion of the investigation, the department issued a show cause notice under Section 28 of the Customs Act, 1962 for recovery of duty, confiscation and penalty invoking the extended period of time on the ground that the appellant had wilfully misdeclared material facts with an intent to evade payment of customs duty. The proposals in the notice were contested. In adjudication of the dispute, the Commissioner passed the impugned order. The Commissioner observed that servicing of aeroplane stipulated in the Notification No. 21/2002 (Serial No. 347) cannot include servicing of aircraft engine also. However, he observed that the noticee would be eligible for benefit of Notification No. 153/94-Cus. which allowed exemption to goods imported for repairs and return subject to following the procedure prescribed ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that there was no wilful suppression on the part of the appellant to evade any customs duty. If that is so, question of imposing fine and penalty on the appellant does not arise at all. The learned consultant also submits that confiscation of the goods is also not warranted inasmuch as they have not violated the condition of exemption. 4. The learned AR appearing for the Revenue, on the other hand, contends that, as per the decision of the Hon'ble Apex Court in the case of Commissioner of Customs (Import), Mumbai v. Jagdish Cancer & Research Centre - 2001 (132) E.L.T. 257 (S.C.), confiscation of the goods can be independently done without attracting the provisions of Section 28(1) of the Customs Act. The order for payment of duty under Section 125(2) would be an integral part of the proceedings relating to confiscation and consequential orders thereon. He also relies on the decision of the Larger Bench of this Tribunal in the case of Bombay Hospital Trust v. Commissioner of Customs, 2005 (188) E.L.T. 374 (Tri.-LB) wherein it has been held that the department has power to recover escaped duty in terms of Section 12 of the Customs Act, 1962 when a post importation condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is satisfied the benefit of exemption cannot be availed by the appellant. In the present case, we find that this condition is not satisfied. It is also argued that there is no time-limit stipulated in the Notification for satisfaction of the condition and, therefore, the condition can be satisfied at any point of time. It has been held in a number of judicial pronouncements by the Hon'ble Apex Court and other Courts that when a time-limit is not specified in law, then the law has to be interpreted in such a way that a reasonable time-limit is read into the law. Under the Customs Act, the normal time-limit prescribed for confirmation of a demand or filing a refund claim is six months or one year. Therefore, the time-limit for fulfilling the conditions in the Notification, which is part of law, in a case where no time-limit is prescribed, should also be considered as one year. Inasmuch as the appellant has failed to fulfil this condition within this period we hold that there is violation of the conditions stipulated in the Notification. 5.4 It is also relevant to observe herein that there is a separate Notification available under Notification No. 153/94-Cus. which provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, without attracting the provisions of Section 28(1) of the Customs Act." 5.7 The ratio of the said decision was followed by this Tribunal in the case of Bombay Hospital Trust (cited supra) wherein it was held as follows : "19. The learned senior Counsel argues that by implication, Mediwell (supra) requires duty to be demanded in accordance with Section 125(2) only and no duty is demandable under that Section, if the appellants do not redeem the impugned goods after confiscation. In this regard we observe the following :- (i) Mediwell (supra) and Medical Relief Society (supra) make no reference to Section 125(2) and allow recovery of duty to be made independent of the said Section. (ii) Section 125(2) states that where any fine in lieu of confiscation of goods is imposed, the owner shall, in addition, be liable to any duty and charges payable on the goods. It merely clarifies that confiscated goods cannot be released on payment of fine alone. It, nowhere, says that if confiscated goods are not redeemed, the duty demand, if otherwise payable, gets extinguished. Jagadish Cancer (supra) also says that there is a mandatory requirement on the adjudicating officer before p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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