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TMI Blog2022 (10) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... fied the goods under Customs Tariff Heading 38122090. The officers of DRI, Gandhidham detained seven consignment of shell Flavex Oil having value of Rs. 85,37,562/- alleging that the same were misdeclared as theses are allegedly classifiable as "Rubber Processing Oil" having more aromatic components under CTH 2707 which is subjected to a higher rate of duty. After carrying out investigation and recording the statements of the relevant personnel of the Appellant first Show Cause Notice dated 20.01.20016 was issued proposing to reject the classification claimed by the Appellant under CTH 38122090 and to classify the same under 27079900 of Customs Tariff Act, 1975 and reassess bill of entry accordingly. It was also proposed to demand different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1975; (b) The proceedings initiated in the present show cause Notices, except the goods under seizure, is hereby order to be concluded in terms of the provisions of Sub-Section (5) & (6) of Section 28 of Customs Act, 1962, for the reason that the noticee has paid the Customs duty alongwith interest and penalty to the tune of 15% of the total duty. (c) I order for confiscation of 1,80,120 kgs of "Shell Flavex Oil 595" which was seized, having assessable value of Rs. 85,37,562/-. As the goods in question are not available for confiscation since they have been provisionally released, I thereby order for redemption fine of Rs. 5,00,000/- in lieu of confiscation under Section 125 of the Customs Act, 1962. (d) I confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notices. The Adjudicating authority has ignored vital evidences on record including bonafide of the Appellant thereby violating principle of natural justice as well. The impugned order needs to be modified to the extent of ordering deemed conclusion under Section 28(2) of the Act. 6.1 He also submits that Hon'ble CESTAT vide final order No. A/12477/2021 dated 29.10.2021 in the Appellant's own case involving same import goods under advance authorization dismissed the Appeal of revenue. Once the bonafide is established, the same is applicable to the facts of the impugned case where similar import of same goods was made under duty payment route from the very same ports for the very same periods. Accordingly, deemed conclusion under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n full together with interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 135, 135A and 140, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the proper officer shall determine the amount of duty or interest not being in excess of the amount partly due from such person. The bare perusal of the above provisions makes it clear that the same is a beneficial provision of legislation with an intention to reduce the litigation proceedings where the assessee satisfies th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreting the provision in a particular manner other than the one which reflects upon such intent. 8.3 Further, the Circular as relied upon by the Ld. Adjudicating authority though expressly excludes the cases covered under Sections 111, 113, 115, 118, 119, 120 & 128 but this emphasis of Department is also of no any benefit to the Department for the reasons that the Circular is merely a clarification regarding the co-noticees. Hence, the Circular is not applicable at least on the main importer/Noticee. It is the settled provision that Circulars being mere clarificatory in nature cannot supersede the legislature. It is also settled principle of law as was held by Hon'ble Apex Court in Babu v. Bar Council, Kerala - AIR 1999 SC 1281 that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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