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TMI Blog2017 (9) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that they were involved in any diversion of imported raw material clandestinely for purposes other than that intended - The SCN therefore should have been issued within a period of six months provided for normal period of limitation under section 28 of the Customs Act, 1962 as was in force at the relevant time. However, this was not done and the show cause notice was issued only after six months period i.e. on 29.12.2004. Reliance placed in the case of Commissioner of Customs, Chennai Vs. Lalchand Bhimraj [2013 (7) TMI 797 - MADRAS HIGH COURT] wherein duty was paid on 1.6.2000 and the SCN was served on imported on 2.12.2000. It was held that the notice was time-barred. Appeal allowed - decided in favor of appellant. - C/370/2005 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice dated 29.12.2004 was issued to the appellants inter alia to show cause as to why:- (i) 362591.100 kgs. of raw cotton used in the manufacture of final products as per SION and cleared under 17AR4s and shipping bills as mentioned in Annexure B by ACML II and accounted for export obligation in ACML I should not be held liable to confiscation under section 111(m) and 111(o) of the Customs Act, 1962. (ii) An amount of ₹ 10,69,643/- (Rupees ten lakhs sixty nine thousand six hundred and forty three only) being the import duty on 362591.100 kgs. of raw cotton used in the manufacture of final products cleared under 17AR4s and shipping bills as mentioned in Annexure B by ACML II and accounted for export obligation in AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) I demand an amount of ₹ 10,69,643/- being the duty on 362591.100 Kgs. of non duty paid raw cotton used in the manufacture of final products arrived at proportionally as per the SION and exported without payment of duty under Advance License Scheme as per condition No. (ii) of Notification No. 48/99 dated 29.4.1999 as amended read with section 28(1) of the Customs Act, 1962 along with interest thereon. 3. Aggrieved, the appellants are before this forum. 4. Today, when the matter came up for hearing, ld. counsel Ms. Sriniranjani appeared on behalf of the appellant. She argued both on the ground of limitation as well as on merits. On merits, ld. counsel submits that their Unit II (100% EOU) had exported cotton yarn under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s refused and in response to which they had taken up the matter to the Hon ble High Court for seeking extension of time. These facts clearly indicate that the appellant had exported substantially fulfilling the export obligation and in fact had been seeking extension of time to complete the quantitative obligation also. It is not the case of the department that they were involved in any diversion of imported raw material clandestinely for purposes other than that intended. No doubt, discrepancies have been found concerning manner of clearance in the name of Unit I, these facts cannot also be disputed that the department was fully aware of these and particularly when they visited the factory on 11.10.2003. It is also not in dispute that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid or erroneously refunded, the officer may initiate proceedings within a period of six months from the relevant date; that he may serve a notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. The six months period of limitation has to be calculated from the relevant date. The relevant date is defined in Section 28(3) of the Customs Act as the date on which the proper officer makes an order fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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