9911796707
TMI Blog2023 (7) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... s) who though confirmed the duty demand, however set aside the order of confiscation of goods and the penalties imposed. The parties herein are referred to as the 'assessee' and 'department' for the sake of convenience. 2. Brief facts are that the assssee filed Bill of Entry dated 07.04.2008 and 15.04.2008 seeking clearance of goods by declaring it as 'Non Alloy Steel Wire Rod'. The goods were imported from M/s.Silvery Dragon PC Steel Products Group Co. Ltd., China and M/s.Wire and Wire Products, Malaysia respectively. The country of origin of both the goods was declared as China. The importer-assessee adopted the classification under CTH 72139990 and claimed concessional rate of duty under Customs Notification No.21/2002. On examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of Entry and not for the past consignments. It was stated therein that it was incumbent upon the department to issue show cause notice in regard to demand of differential duty for the past consignments covered by 5 Bills of Entry. 3. Accordingly, show cause notice dt. 06.11.2009 was issued to the assessee proposing to classify the goods under CTH 73121090 as well as to demand differential duty on the past consignments vide five Bills of Entry. After due process of law, the original authority vide order dt. 26.10.2010 determined the classification of goods as CTH 73129090 and confirmed the differential duty of Rs.13,30,375/- along with interest and imposed penalty under Section 114A of the Customs Act, 1962 for the acts of omission an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period and therefore the goods cannot be confiscated under Section 111 (m). It is argued by the Ld. AR that when the SCN has been issued as per the direction of the final order of the Tribunal the relevant date for computing the period of limitation (six months) for issuance of the SCN would be the date of passing of the final order by CESTAT which is 25.09.2008. The SCN issued on 06.11.2009 would then be within time. It is also argued that the observation made by the Commissioner (Appeals) that there are no grounds in the nature of willful misstatement or suppression of facts with an intent to evade payment of duty on the part of the respondent is erroneous as the goods have been misdeclared. Ld. A.R argued that the SCN has been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal may be dismissed. 7. Heard both sides. 8. The appeal before us poses an interesting situation wherein the SCN in respect of past consignments have been issued after the appellate stage of the litigation. In the Final Order dt. 25.09.2008 passed by the Tribunal in the earlier round of litigation it has been categorically held by the Tribunal that department ought to have issued a SCN to the assessee before proceeding against the assessee for recovery of differential duty in respect of past consignments. Relevant para of the Tribunal order reads as under : "6.....In respect of the imports made in April, 2008, the importer had waived show-cause notice vide their letter dated 30.04.2008. That letter, however, requested for an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. We have to say that there is no explicit or express direction to issue a SCN. The department has issued the SCN, by interpreting the remand as a direction to issue SCN. In our view, the genesis of a litigation is the issuance of show cause notice. The intention of such show cause notice is to inform the party about the allegations and also to give opportunity to the party to put forward any defence with regard to the allegations. The said requirement is the basic principle of natural justice. There is no provision in the Customs Act, 1962 which enables the Tribunal to direct the department to issue show cause notice to a party. A litigation has to move forward from the stage of adjudication to a higher forum and cannot certainly b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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