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TMI Blog2018 (8) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... mis-statement or suppression i.e. even in respect of illegal activity of the assesse, if the same stands accepted by him and the respective duty alongwith proportionate interest and the required penalty stands paid. In the present case, the appellant herein has made the payment against the impugned bill of entry dated 29.09.2015 even prior the issuance of Show Cause Notice i.e. on 01.09.2015 itself with subsequent payment towards the penalty and interest on 07.01.2016 and 18.02.2016 respectively. The requisite TR-6/GAR-7 Challans are attached with the Appeal papers. As per the above provision, the appellant had the time to make the deposit till 08.03.2016 but the payment stands made by 18.02.2016. No doubt Sections 28(5) and 28(6) are applicable without prejudice to the provisions of Sections 135, 135A and 140 of the Customs Act but perusal of Show Cause Notice makes it clear that none of these provisions have been invoked at the time of issuing Show Cause Notice. It has already been observed that in fact the Show Cause Notice, in the present case, was not required to be issued - The present is opined to be a clear case of presumed and assumed interpretation of Section 28(5) and 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmed. Aggrieved of that Order, the Appeal was filed before Commissioner(Appeals) who vide the Order under challenge dated 26.04.18 has upheld the Order-in- Original confirming the denial for the benefit of Section 28(5) and Section 28(6) of the Customs Act, 1962. Resultantly, the present Appeal has been filed. 2. I have heard Shri Ashish Batra, Ld. Advocate for the appellant and Shri P. Juneja, Ld. DR for the Department. 3. Ld. Counsel for the appellant has impressed upon subsection 5 and sub-section 6 of Section 28 of the Customs Act submitting that the provision permits conclusion of the proceedings under the Act where the duty alongwith interest and the penalty as mentioned therein is deposited within 30 days of issuance of Show Cause Notice and no differential has been subsequently demanded by the Department. It is also impressed upon that the payment in compliance of said Section was made by the appellant even prior the issuance of Show Cause Notice, still the Show Cause Notice was served and has been adjudicated against the appellant. The findings of the authorities below are therefore alleged to be erroneous while denying the benefit of this provision to the appellant. Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that person, within thirty days of the receipt of the notice and inform the proper officer of such payment in writing. 6) Where the importer or the exporter or the agent or the employee of the importer or the exporter, as the case may be, has paid duty with interest and penalty under sub-section (5), the proper officer shall determine the amount of duty or interest and on determination, if the proper officer is of the opinion - (i) that the duty with interest and penalty has been paid in full, then, the proceedings in respect of such person or other persons to whom the notice is served under sub-section (1) or sub-section (4), shall, without prejudice to the provisions of Sections 135, 135A and 140 be deemed to be conclusive as to the matters stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then, the proper officer shall proceed to issue the notice as provided for in clause (a) of sub-section (1) in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be payable within a period of two years as shall be computed from the date of receipt of said information. The Department has miserably failed to follow the prescribed procedure. 8. No doubt Sections 28(5) and 28(6) are applicable without prejudice to the provisions of Sections 135, 135A and 140 of the Customs Act but perusal of Show Cause Notice makes it clear that none of these provisions have been invoked at the time of issuing Show Cause Notice. It has already been observed that in fact the Show Cause Notice, in the present case, was not required to be issued. Though the Department has impressed upon about the present case to be a case of confiscation on account of mis-declaration punishable under Section 135 of the Act and has also impressed upon Circular No. 11/2016 excluding the case in one to be out the ambit thereof. But I am of the opinion that Section 28(5) and 28(6) are applicable for all those cases as are mentioned in sub-section 4 of Section 28. Perusal thereof makes it clear that collusion, wilful mis-statement or suppression of facts are mentioned to be the reason for evasion of duty. The alleged Act of appellant is squarely covered under the said sub-section. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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