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TMI Blog2004 (1) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... d 8-2-2001, we think it is futile to examine the jurisdictional issue. Yet another ground raised against the demand of customs duty was that the duty-free assessment made by the proper officer on the ex-bond Bills of Entry u/s 47 of the Customs Act had become final and binding on the Revenue for want of review u/s 129D of the Act. As for the penalty, we find that the Commissioner has imposed a penalty u/s 112(a) of the Customs Act whereas what was proposed in the show cause notice dated 9-2-2001 was a penalty u/s 114A of the Act. Any penalty beyond the scope of the show cause notice cannot be sustained. In the result, we set aside the impugned order and allow this appeal with consequential relief. - S/Shri V.K. Agrawal, Member (T) and P.G. Chacko, Member (J) [Order per : P.G. Chacko, Member (J)]. - The appellants were a 100% Export-Oriented Undertaking (EOU) engaged in the galvanizing of M.S. Black Pipes falling under Chapter 73 of the Central Excise Tariff Act Schedule, for which they had the requisite permission from the competent authority under the Ministry of Industry, Government of India. They imported 1,194.200 MTs of Hot-Rolled Steel Coils (sub-heading No. 7208.90) and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d personally hearing them, the jurisdictional Commissioner of Customs confirmed the demand of duty under Section 28 of the Customs Act together with interest on duty under Section 28AB of the Act and also imposed a penalty of Rs. 25 lakhs on them under Section 112(a) of the Act as per order dated 25-9-2002. The present appeal is against this order of the Commissioner. 2.Heard both the sides. The Counsel for the appellants submitted that the corrigendum issued on 9-2-2001 had completely changed the complexion of the case made out in the original show cause notice dated 1-7-98 and, therefore, it required to be treated as a fresh show cause notice. If so treated, the demand of Customs duty was wholly barred by limitation. In this connection, reliance was placed on the Tribunal's decision in Studds Ltd. v. CCE, Delhi-II [2002 (140) E.L.T. 511]. Alternatively, drawing support from the Tribunal's decision in ESPI Industries v. CCE, Hyderabad [2000 (115) E.L.T. 811], Counsel argued that the demand of duty raised in the corrigendum was barred by res judicata. The Counsel further contended that, in terms of CBEC Circular No. 299/15/97-CX., dated 27-2-97, the Superintendent had no authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants. In this connection, he relied on the Tribunal's decision in Padmini Technology Ltd. v. CC [2002 (150) E.L.T. 615]. It was finally argued that, where the conditions of an exemption notification were not fulfilled, the exemption was not available to the party concerned. Reliance was placed on the Supreme Court's decision in Mihir Textiles Ltd. v. CC, Bombay [1997 (92) E.L.T. 9 (S.C.)]. The DR also relied on the Tribunal's larger Bench decision in CCE v. Avis Electronics Pvt. Ltd. [2000 (117) E.L.T. 571]. 4.We have carefully considered the submissions. The demand raised on the appellants by the Department through show cause notice dated 1-7-98 as amended by the corrigendum dated 9-2-2001 is for customs duty of over Rs. 65 lakhs on HR coils cleared by the party to M/s. Siddhartha Tubes Ltd. (DTA unit) without payment of duty under ex-bond Bills of Entry dated 8-1-98 and 20-1-98. It is not in dispute that the said Bills of Entry were filed by the DTA unit claiming duty-free clearance under the DEEC Scheme on the basis of Advance Licences and Advance Release Orders issued by the Directorate of Foreign Trade and that the clearance of the goods was allowed on duty-free assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Hence a demand of certain duty raised under one Act cannot be transformed into demand of a different duty under the other Act through a corrigendum to the show cause notice issued under the former Act, though it is open to the department to issue a corrigendum within reasonable time to amend a show cause notice under a given statute without enlarging the scope of, or otherwise changing the complexion of the case made out in, the original notice. The fact that the authority for issuing show cause notices under both the statutes is vested in the same officer is not a relevant factor in this context. We note that the amendments brought about by a corrigendum to show cause notice would normally date back to the notice itself and therefore, as in the instant case, a belated corrigendum for demanding one kind of duty under one statute, to a notice issued earlier for demanding another kind of duty under another statute can be grossly prejudicial to the assessee's substantive right of pleading limitation under the former statute. An assessee's right to resist a demand of duty on the ground of limitation cannot be defeated by the Revenue in this manner. The DR has not shown to us any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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