9911796707
TMI Blog2023 (5) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows:- "ORDER (a) The equipments imported vide Bill of Entry No. 10211 dated 26.02.1990 are eligible for exemption in terms of Notification 65/88-Cus and Notf 159/89-cus dated 12.05.89. (b) I confirm demand for duty amounting to Rs.3,11,022/- and interest under Section 47(2) of Customs Act, 1962 to be paid by the importer on the said goods under Section 125(2) read with Section 12 of the Customs Act, 1962. 15. The order regarding confiscation of the goods under section 111(0) and redemption fine of Rs.2,50,000/-, under section 125(1), and penalty of Rs.25,000/- under section 112(a) of the Customs Act ordered vide Order-in-Original dated 03.10.2000 ordered vide Order-in-Original dated 08.01.2010 are upheld by the Honorable Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 28AA are not attracted when duty has not been demanded in terms of Section 28. Therefore the demand is not sustainable. Accordingly the demand for interest be set aside. 3.3 Learned AR reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Commissioner has vide the impugned order recorded the following findings:- "12. As directed by the CESTAT the short question that arises for consideration before me to quantify the actual duty payable as per the order of the Tribunal dated 11.06.2008. Based on the submissions made before me during the hearing I condone the delay in deposit of government dues, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption under this notification with respect to any goods mentioned in any notification specified in the said Schedule shall be subject to the conditions, if any, subject to which such goods are exempt by virtue of such notification, either partially or wholly, from the duty of customs specified in the First Schedule to the said Customs Tariff Act." I find that Notification No 65/88 Cus 01.03.1988 is specified at Serial no. 233 in the schedule to the Notification 159/89. There is no condition attached to the import of the said goods, for availing the benefit in terms of Notification 159/89. I find that the importers have already been granted exemption in terms Notification 65/88 vide Order-in-Original dated 08.01.2010 which has been up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or restricted, no such fine shall be imposed: Provided further that without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. .........". 4.4 From a plain reading of the above section, it is evident that Section 125(2) is not a section for confirmation of demand of duty, but it creates an obligation on the importer/person seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Bharat Hospital & Institute of Oncology [2010 (249) ELT 65 (Tri.-Bang.)], following has been held:- "8. As regards the payment of interest, we find that the interest has been demanded under 28AA of the Customs Act, 1962. In this case we find the question of invoking provisions of Section 28AA of the Customs Act, 1962 does not arise and in the show cause notice also there is no proposal to do so. In the absence of any determination of the duty under Section 28(1) the question of payment of interest under Section 28AA does not arise. In view of this, the interest sought to be levied and collected from the appellant is liable to be set aside and we do so. The impugned order to the extent it confirms the demand of the interest f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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