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TMI Blog2018 (9) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 for non-prosecution and on monetary limits. Thereafter, the appellant filed an ROA application No. 41207/2017 for restoring the appeal. The same was also dismissed on 19.12.2017 for non-prosecution. Thereafter, the present ROA application has been filed for restoration of the application that has been dismissed for default. 2. The Ld. Counsel Shri. M. Rajendran appearing for the appellant submitted that the appellant did not receive any hearing notice from the Registry and, therefore, neither the appellant nor the counsel could appear and argue the matter. This resulted in non-appearance of the counsel on 19.12.2017 when the ROA was posted for hearing. He prayed that a lenient view may be taken in the matter as it was not due to any wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by debiting the DFCE scrips. Hence, Show Cause Notice dt. 05.12.2006 was issued demanding SAD of Rs. 98.560/-. After due process of law, the Original Authority confirmed the duty demand along with applicable interest. In appeal, the Commissioner (Appeals) upheld the same. Hence, the appellants have filed the present appeal. 7.1 He submitted that the adjudicating authority failed to appreciate the scope of Notification No. 53/2003-Cus. dt. 01.04.2003 and ought to have considered that only in cases where assessment was complete, the question of invoking Section 28(1) of the Customs Act, 1962 would arise for recovery of short payment of duty. The Hon'ble Supreme court in Priya Blue Industries Ltd. Vs. Commissioner - 2004 (172) E.L.T. 145 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid in cash. The basic Custom Duty and CVD could be paid by debiting in the DFCE scrips. The allegation of the Department is that since the appellants have not paid it by cash, there is short payment of duty. We are not able to accept this contention of the Department fully. Once the duty has been paid by debiting in the same, the appellant has suffered duty. Only the manner of payment of duty is not in accordance with law. If the appellant had been put to notice while debiting in the DFCE scrips, he would have opted to pay the SAD by cash itself. Instead, after a period of almost four months, the Show Cause Notice has been issued alleging short payment of duty. 9.2 In the peculiar facts of the case, we are of the considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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