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TMI Blog2019 (9) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... The imported goods namely, OFS is classifiable under CTH 90011000; benefit of Notification No 024/2005-Cus is not available for them. (ii) An amount of Rs. 14,99,939/- (out of the total demand for Rs. 92,94,731/-) is hereby confirmed under Section 28(2) of CA 62. (iii) Appropriate interest has to be paid on the aforesaid confirmed amount under Section 28AB of the CA 62. (iv) There shall be no order regarding confiscation of the goods. (v) There shall be no penalty on the noticees." 2.1 Respondents were engaged in importation of "48F Optical Fibre Cable" by classifying them under CTH 85447090 and claiming the benefit under Notification No 24/2006-Cus dated 01.03.2005. Investigation undertaken by DGRI, revealed that the said goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alent to the duty exemption availed on the goods viz OFC imported and cleared by availing undue benefits under Notification No 24/2005 dated 01.03.2005 as amended should not be demanded from them under proviso to Section 28(1) of the Customs Act, 1962. (iv) The amount of Rs. 92,94,731/- deposited voluntarily should not be appropriated against differential duty liability in respect of the imports mentioned at Annexure A to this notice. (v) Interest should not be recovered from them on duty short levied/ short paid in terms of Section 28AB of the Customs Act, 1962. (vi) Penalty should not be imposed upon them under section 112(a)/ 114A and 114AA of the Customs Act, 1962. 2.3 The show cause notice has been adjudicated by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y amount of Rs. 77,94,792/- which was paid voluntarily by the importer prior to the issuance of Show Cause Notice. The only issue open legally was to determine imposition of penalty by examining facts relating to collusion, wilful mis statement and suppression of facts." 3.2 In there cross objections respondents have stated as follows: * DRI has no authority to collect the duty during the investigation. Further, any amount deposited during the pendency of investigation is in the nature of deposit. Such deposit cannot be towards payment of duty; * OFC imported is correctly classifiable under Heading 8544 of the Customs Tariff; * Relevant date for computing time limit of six month under Section 28 of the Customs Act, 1962 is date of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proper officer may determine the amount of short-payment of duty or interest, if any, which in his opinion has not been paid by such person and, then, the proper officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" or "six months" as the case may be, referred to in sub-section (1) shall be counted from the date of receipt of such information of payment." 4.4 Interpreting the said sub section, Hon'ble Karnataka High Court has in case of Powerica Ltd [2012 (276) ELT 302 (Kar)] held as follows: "4. In view of the aforesaid provision, when the assessee pays the duty and penalty and inform the proper Officer of such payment in writing, who on receipt of such information shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue as per the notice issued. In case he arrives at finding that extended period is not invokable he is duty bound to drop the demand to the extent it is not maintainable, even if the amounts have been deposited prior to issuance of notice. Similar view has been expressed by the Larger Bench of Tribunal in case of Al-Falah Exports 206 (198) ELT 343 (TLB)] in following words: "1.2 We have heard ld. Advocates and ld. DR and have considered the submissions made. After considering the material it is found. (a) Causes for arriving at penalties under the Customs Act, 1962 and Central Excise Act, 1944 are not similar, inasmuch as the Former Act raises liability to penalty for transgressions and violation of import/export prohibitions without or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be made or effected, it would not make a difference whether such duty was paid before or after the intervention by the departmental officers in any form or manner, this would include the fact of search, seizure etc. Therefore we cannot find the view taken in the case of M/s. Saheli Synthetics Pvt. Ltd. vide Order Nos. A/681 to 683/2005-WZB/C-III, dtd 19-7-2005 to uphold that there is a call for a differentiation, in approach based on reasons of intervention by the department; rendering the consequent payments effected, on re-assessment clearance of Customs goods already made or when effected otherwise." 4.6 Thus by issuing the show cause notice, Revenue has itself opted not to settle the issue in terms of sub-section 2B of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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