9911796707
TMI Blog2024 (1) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, it is clearly a malafide on the part of the appellant. As regards the submission of the learned Counsel that their case is covered by proviso to sub-section (2) to Section 28 and show cause notice cannot be issued, it is observed that the provision for non-issuance of show cause notice is applicable only when the assessee paid the duty and interest and informed in writing to the department. Whereas, in the present case, firstly the extended period was informed on the ground that there is suppression of facts and malafide on the part of the appellant and secondly, the appellant have not declared to the department that they want to close the case on payment of duty and interest and therefore, the appellant is not entitled for relief a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse therefore, unit could not have been de-bonded and the departmental authority has erroneously issued no dues certificate. On pointing out by the department the appellant have paid required customs duty and also paid interest however, show cause notice dated 24.01.2013 was issued by the department proposing the demand of customs duty of Rs. 17,54,676/- and proposing appropriation of the same as the same was paid by the appellant. The demand of interest was also made since the same was paid, was also proposed to be appropriated. Demand of Central Excise duty was also proposed for Rs. 5,84,558/-leviable on the closing stock of finished goods however the same was paid, it was proposed to appropriate the same. Similarly, interest on such cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision is reproduced below:- Section 28. [Recovery of [duties not levied or not paid or short-levied or short- paid] or erroneously refunded. (1) Where any [duty has not been levied or not paid or short-levied or short-paid] or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any willful mis-statement or suppression of facts- (a) the proper officer shall, within [two years] from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied [or paid] or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en paid in full within thirty days from the date of receipt of the notice, no penalty shall be levied and the proceedings against such person or other persons to whom the said notice is served under clause (a) of sub-section (1) shall be deemed to be concluded.] (3) Where the proper officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of [two years] shall be computed from the date of receipt of information under sub-section (2). (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and inform the proper officer of such payment in writing. From the above provision, it is observed that the provision for non-issuance of show cause notice is applicable only when the assessee paid the duty and interest and informed in writing to the department. Whereas, in the present case, firstly the extended period was informed on the ground that there is suppression of facts and malafide on the part of the appellant and secondly, the appellant have not declared to the department that they want to close the case on payment of duty and interest and therefore, the appellant is not entitled for relief as provided under sub-section (2) of Section 28 of the Customs Act, 1962. However, as the appellant have admittedly paid duty and inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
