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TMI Blog2019 (1) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... of Show Cause Notice dated 30.01.2016 alongwith the payment towards the penalty interest on 01.12.2015, 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 01.03.2016 but the payment stands made by 18.02.2016. It is also apparent from the Show Cause Notice that the said payment of the differential duty and that of the penalty was brought to the notice of the Department vide letter dated 08.01.2016. The said acknowledgment is very much recorded in the Show Cause Notice itself - In the given circumstances, it can be concluded that the Department has committed an error even while issuing the Show Cause Notice. 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 is well settled law that the legislative intent, extending certain beneficial provision to the assessee, should not be made frivolous by interpreting the provision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2015 (RUD-7). The premises of M/s Krishna Capital, Shop No. 10, Central Market, DDA Flats, Kalkaji, New Delhi 110002 was found non-existent at the given address. 2. From above it appears that M/s Krishna Capital has mis-declared the refrigerant as R-32 which actually is R-22 and also mis-declared about weight, size and price. Resultantly, a SCN dated 30.01.2016 was issued to the appellants calling upon to explain as to why :- (i) The declared transaction value of ₹ 29,25,525.60 and RSP of ₹ 18,000/- per unit of the goods imported under BE No. 2748490 dated 29.09.2015 should not be rejected under Section 14 of the Customs Act, 1962 read with Rule 12 of the CVR, 2007 and the same be re-determined as ₹ 40,63,230/- with RSP of ₹ 27,500/- per unit [as per Col 11 of Table above] under Section 14 of the Customs Act, 1962 read with Rules 3 and 4 of the CVR, 2007; (ii) The goods imported under Bill of Entry Nos. 2748490 dated 29.09.2015 having re-determined assessable values of ₹ 40,63,230/- with RSP of ₹ 27,500/- per unit [as per Col 11 of Table] under Rule 4 of the CVR, 2007 read with Section 14 of the Customs Act, 1962 should not be held lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Orders are accordingly prayed to be set aside. Ld. Counsel has relied upon the decision of this Tribunal in the case of M/s Orbit Jewellers Vs. Commissioner of Customs, Air Cargo (Exports), New Delhi 2016 (338) E.L.T. 620 (Tri. Del). 6. While rebutting these arguments it is submitted by the Department that there is no infirmity in the Order under challenge as Section 28 of the Customs Act, 1962 is applicable only in the cases where Show Cause Notice under sub-section 4 thereof has been issued. The present case is the case of mis-declaration of the imported goods resulting into the confiscation of the consignment. Since the appellant cannot claim the ownership of those confiscated goods till he deposits the RF, hence, the case of the appellants is out of the ambit of Section 28. In addition, there is a Circular No. 11/2016 dated 15.03.2015 which expressly excludes the cases of confiscation out of the purview thereof. Same is impressed upon as being rightly applied by the Adjudicating Authority below. Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under sub-section (5). 8. The bare perusal of the above provisions makes it clear that the same is a beneficial piece of legislation with an intention to reduce the litigation proceedings where the assesse satisfies the condition of the said Section. The language makes it clear that the provisions provide for deemed conclusion of the proceedings against the assesses if the payment as regard the duty, interest and 15% penalty thereof stands made by the assesse within a period of 30 days of the receipt of Show Cause Notice. It is further seen that the provision is applicable even in the cases of demand having been arisen on account of collusion, wilful 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. 9. Now coming to the fact of the present case, the appellant herein has made the payment against the impugned bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof 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. Hence, I opine that case of appellant is very much covered under the deemed conclusion scheme of legislature under Section 28 of the Customs Act. To accept the Revenue s stand would therefore amount to curtailing the sweep of a beneficial provision to the appellants. I opine that Adjudicating Authorities below had adopted artificial interpretation of these provisions to defeat the statutory intent. It is well settled law that the legislative intent, extending certain beneficial provision to the assessee, should not be made frivolous by interpreting the provision in a particular manner other than the one which reflects upon such intent. 11. Further, the Circular as relied upon by the Department though expressly excludes the cases covered under Sections 111, 113, 115, 118, 119, 120 128 to be out of the purview of this Circular but this emphasis of Department is also not opined to be of any benefit to the Department for the reasons that the Circular is merely a clarificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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