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TMI Blog2024 (5) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier round is not explicit on that aspect and, indeed, could not, in absence of ground canvassed then that bill of entry should stand amended, under the authority of section 149 of Customs Act, 1962, have been. Thus, the direction of the Tribunal was limited to the factual matrix as set out in the show cause notice except for consideration of post-notice please for alternative, and more beneficial, duty liability on the specific plea of the appellant. It is solely on the fact of postassessment notice that the plea against recourse to retrospective jurisdiction u/s 47(2) of Customs Act, 1962 could lie and is allowed now. Consequently, the stand cannot be reversed to press for lack of jurisdiction to invoke section 112 of Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute has come before us for the second time. On the earlier occasion, the Tribunal, considering the limited plea of the importer that their submission on availability of alternative exemption notification was not considered by the original authority, had remanded disposal of show cause notice back to the original authority for ascertainment thereof while directing deposit of the duty arising therefrom as a condition. 2. M/s Dr Babasaheb Ambedkar Vaidyakiya Pratishthan had imported phased array Doppler system model SSD-630 valued at ₹ 12,65,633/- under claim for exemption of notification no. 64/88-Cus dated 1st March 1988 which was held as ineligible with consequential duty liability of ₹ 15,35,846/- ordered to be recovered, alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative exemption notification when it had not been claimed in the entry filed by them. 4. We have considered the respective points and counters made by Learned Authorized Representative and Learned Counsel for the importer-appellant in their respective submissions. 5. It transpires that the appeal of Revenue does not dispute that the alternative notification would entitle the importer to lesser duty than that proposed in the notice and resists the impugned order solely on the ground that such claim had not been made in the bill of entry filed by them. The finding in the impugned order of eligibility to avail the alternative exemption notification is not controverted and as denovo adjudication had been ordered by the Tribunal to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in paying duty assessed in terms of Section 47(1) of the Act. Sub Section (2) of Section 47, states that interest is payable if the duty is not paid within 2 days from the date on which the assessed bill of entry is returned to the assessee for payment of duty. I have to agree with the Member (J) that in the present case in terms of Section 47(1), there is no delay in payment of duty and consequently there is no liability to pay interest under Section 47(2) of the Act. The learned counsel appearing for respondents, Shri Karan Talwar has relied upon the judgment laid in India Carbon Ltd. v. State of Assam 1997 (106) STC 460 SC to canvass the proposition that interest is substantive in nature and for levy of interest there should be a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been assessed as on date of issue of show cause notice to enable the claim of exemption to be deemed to exist therein, the chargeability of interest under section 47(2) of Customs Act, 1962 could not have been disputed and the decision of the Tribunal, in re Ruchi Soya Industries Ltd, would not be applicable to the appellant-importer. It is solely on the fact of postassessment notice that the plea against recourse to retrospective jurisdiction under section 47(2) of Customs Act, 1962 could lie and is allowed now. Consequently, the stand cannot be reversed to press for lack of jurisdiction to invoke section 112 of Customs Act, 1962. 10. It is settled law that penalty cannot be enhanced in subsequent proceedings except in challenge that place ..... X X X X Extracts X X X X X X X X Extracts X X X X
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