9911796707
TMI Blog2024 (9) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... OF CUSTOMS, BANGALORE [ 2024 (8) TMI 676 - CESTAT BANGALORE] , held ' this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso.' - the appellant is liable to pay 4% SAD, thus the impugned order is upheld on merit. Suppression of facts or not - HELD THAT:- Since, the description, specific chapter heading and respective duties liable to be paid are clearly mentioned and assessed to duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No.21/2012-Cus. (Sl. No. 12) dated 17.03.2012. However, later it was noticed that the said goods were omitted from the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957 with effect from 08.04.2011 and hence they were liable to pay additional duty of customs (SAD). Accordingly, show-cause notice was issued and impugned order confirmed duty on the said goods for the period April 2011 to October 2012. The authorities also invoked suppression on the ground that the Bills of Entry were cleared under self-assessment and the appellant had claimed the exemption of the notifications; which they were not eligible; thus, there was misdeclaration and hence extended period of limitation was invoked. 3. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extending the benefit of Notification to the goods that were omitted does not arise. Therefore, the appellant s claim that the amendment to the First Schedule has no implication on the exemption Notification is absolutely of no legal basis in as much as the exemption Notification read with the amendment made to the First Schedule makes them ineligible for the benefit of the above Notification. There is no dispute that the Bills of Entry filed by the appellant was for clearance of textile materials classifiable under Chapter Headings 5407, 5516 and 5903 which specifically stand omitted by the above amendment. Hence, the Commissioner (Appeals) had rightly denied the benefit of the Notification. As rightly submitted by the Revenue, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situations, viz. inadvertent non-payment and deliberate default. The former is canvassed in the main body of Section 28 of the Act and is met with a limitation period of six months, whereas the latter, finds abode in the proviso to the section and faces a limitation period of five years. For the operation of the proviso, the intention to deliberately default is a mandatory prerequisite. 20-24 . 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond Bills of Entry filed by the appellant are clearly endorsed by the officers as proof of assessment. Since, the description, specific chapter heading and respective duties liable to be paid are clearly mentioned and assessed to duty by the officers, the question of reopening the assessments for the past period does not arise. There are no material facts that have been mis-declared or misrepresented except to state that in self-assessment, the appellant should have been vigilant and claimed only those benefits that were available to them. In view of the above, I do not find any reason to uphold the demand beyond the normal period. 8. It is also noticed from the records that that the appellant has paid the entire duty amount of Rs.3,95,676/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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