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TMI Blog2019 (5) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants. The entire case of the revenue is based on the few statements recorded by the Custom officers. The statement of Mr Shrish were recorded on 20.02.2002, 11.06.2002, 25.08.2004 and 03.02.2005, Shri Fifadra on 03.04.2002 and of Shri Atul on 19.11.2003. Since all the facts including the catalogues relied upon in show cause notice were made available to revenue as early as in 2002, the delay in issuance of show cause notice could not be justified. Correction of clerical errors, etc. - Section 154 of Customs Act, 1962 - HELD THAT:- From plain reading of the Section it is evident that the Section is available for correction of arithmetical mistakes or clerical errors in the decisions or orders and not the Show Cause Notice. By applying the said Section for correction of the error in the Show Cause Notice, has gone beyond the scope of section. Appeal allowed - decided in favor of appellant. - Appeal No. C/1180/2006 - A/85711/2019 - Dated:- 16-1-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Brijesh Pathak, Advocate for the Appellant Shri R. Kumar, Authorised Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns statements of Shri Shrish Additional Chief Manager (Projects), Shri Umed Fifadra Director, of the Appellant and Shri Atul Thakkar Project Manager, Indian Oil Tanking Limited was recorded. 2.3 After completion of enquiry/ investigations a show cause notice dated 11.03.2005 was issued to appellants calling them to show cause as to why: (i) the configuration software should not be considered as part of Danload 6000 and classified under CTH 9032. (ii) Danload 6000 and its parts not be classified under CTH 9032 and differential duty amounting to ₹ 3355461/- (rupees Thirty Three Lakhs Fifty Five Thousand Four Hundred and Sixty One Only) and interest thereon be confirmed and recovered in terms of proviso to Section 28 of the Customs Act, 1962 and why the Revenue deposit of ₹ 35,00,000/- (Rupees Thirty Five Lakhs Only) deposited by him not be adjusted against duty and interest applicable thereon. (iii) Danload 6000 and its part/ components imported by M/s Advance Spectra Tek Private Ltd., totally valued at ₹ 2,00,91,213.00 (Rupees Two Crore Ninety One Thousand two Hundred and Thirteen Only) covered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 276 (SC)], Padmini Products {1989 (43) ELT 195 (SC)], Tamil Nadu Housing Board {1994 (74) ELT 9 (SC)] and Malleable Iron and Steel Casting [1998 (100) ELT 8 (SC)] iv. Penalties have been imposed both under section 112 (a) and 114 A which is forbidden as per fifth proviso to section 114A. Thus entire order imposing penalties need to be quashed. Further there has been no act of deliberate suppression, misdecalaration or fraud etc., committed by them which can justify the penalty imposed on them under Section 112. 4.1 We heard Shri Brijesh Pathak, Advocate for the Appellants and Shri R Kumar, Assistant Commissioner, Authorized Representative for the Revenue. 4.2 Arguing for the appellants learned advocate reiterated the submissions made in appeal. He stated that the item imported by them was correctly classified and assessed by the Customs at the time of clearance of the goods. It was subsequently after a lapse of considerable period of time that revenue started investigating the case of misclassification, and issued the show cause in respect of the imports made by them during the 15.03.2000 to 18.10.2001, only on 11.03.2005. The show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y M/s Advance Spectra Tek Private Ltd (India) Pvt Ltd and Sh Umed Fifadra to evade payment correct rate of duty. 17. Therefore it appears that M/s Advance Spectra Tek Private Ltd had deliberately (a) submitted manipulated/ incomplete catalogue of the DANLOAD 6000 so that the correct description and classification of the equipment could not be determined. (b) split the value of equipment into hardware/ hardware equipment and software to evade payment of correct amount of duty; and (c) classified the equipment under CTH 8471 as against CTH 9032 to evade payment of appropriate rate of duty. 18. Hence the goods totally valued at ₹ 2,00,91,213.00 (Rupees Two Crore Ninety One Thousand Two Hundred and Thirteen only) and covered by eight Bills of Entry as mentioned in Annexure A in this notice , appears to be liable for confiscation under Section 111 (m) of the Customs Act, 1962 and M/s Advance Spectra Tek Pvt Ltd. appears to be liable penalty under Section 112(a) of the Customs Act, 1962. Similarly duty amounting to ₹ 33, 55,461/- (Rupees Thirty Three Lakhs Fifty Five Thousand Four Hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d apparatus for measuring or checking the flow or level of liquids which carries the BCD rate of 25% adv. instead of CTH 9026.80 under residuary category of other instruments and apparatus carrying BCD rate of 10% adv. They themselves have become prey to their own scheme of wilful mis-statement and suppression of facts as they have confused to what and when they would misstate/misdeclare/suppress. This is obvious from the way they have declared PCA key board generally under CTH 9026.90 but in one case they have declared it under 8471.60. Similarly, in case of PCA Display in one case, they have declared it under CTH 9026.90 whereas in the rest they have declared it under 8531.20. Therefore, the deptt. is right in invoking the extended period of 5 years applying the proviso to Section 28 for issue of show cause demanding the differential duty. Having said that the time period of 5 years is available to the deptt. I still feel pained to note that the show cause notice could have been issued much earlier instead of elongating the investigation from 2002 to 2005, intercepted by long spell of non action. But as long as the show cause notice is issued within the prescribed limit of 5 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year. Such notice beyond the normal period of limitation could have been issued only if there have been suppression of facts. If, from the show cause notice, dated 16-4-2002 and the report of the EPTRI and NMDC in respect of the samples from the consignments dated 24-12-2001 and 24-1-2002, the Revenue was already in the know of the relevant facts, it is difficult to understand as to how the Revenue could have the benefit of anything but the normal period of limitation to issue the show cause notices dated 18-3- 2003. The order of the learned Tribunal insofar as the six appeals are concerned, holding show cause notices issued therein to be time barred and interfering with the adjudication orders dated 29-3-2004 and 23-9-2004, therefore, must have the approval of this Court. 5.4 In case of Cemphar Drugs and Liniments [], Hon ble Apex Court held that 8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollusion or willful mis-statement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation. 5.6 Thus in view of the law laid down by Hon ble Apex Court in the above stated decisions and many others we are of the view that extended period of limitation is not invokable in the present case. Order of Commissioner to the extent of holding that extended period of limitation cannot be sustained. 5.7 By the impugned order Commissioner has confirmed demand of duty which was never there in the show cause notice. While Show Cause Notice demanded duty of ₹ 33,55,461/- Commissioner has confirmed demand of ₹ 49,49,505. The justification given by the Commissioner by referring to Section 154 of the Customs Act, 1962 is not tenable. Section 154 of Customs Act, 1962 reads as follows: SECTION 154. Correction of clerical errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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