2005 (5) TMI 187

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..... fication of mistake are : (a) The Tribunal while passing the impugned order failed to take into consideration the settled legal position that a show cause notice under Section 28 has to be issued by an Officer of the Rank of a Collector/Commissioner whenever a larger period of limitation is invoked. Admittedly the show cause notices were issued after the normal period of limitation of six months has elapsed. The notices were issued by the Assistant Collector contrary to the Provisions of Section 28(1) Proviso. The Tribunal in the case of Northern India Woollen Mills v. Collector of Customs [1991 (53) E.L.T. 81 (T)] held that demand for duty, confiscation and levy of penalty are to be done in a composite manner and duty demand cannot be se .....

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..... led by the appellants, on the direction of the Bench, while passing the impugned order. 5. Heard both sides and perused the impugned order. 6. We observe that in the impugned order the Tribunal dealt with the issue of jurisdiction in Para 7 which is produced below : "We will first consider the preliminary objection raised by the Counsel for these appellants. A reading of the notices issued to the persons in question does not bear out the contention of the Counsel for these appellants that they have invoked the extended period contained in Section 28 of the Act. In point of fact these notices did not cite the provision of Section 28 at all. They demanded duty on the ground by invoking the provision of 186/88 on the ground that the cont .....

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..... icants' contention that a show cause notice under Section 124 can be issued only under Section 28 of the Customs Act is not a valid proposition. The Supreme Court in the case of Jagdish Cancer Research Centre - 2001 (132) E.L.T. 257 clearly held that a show cause notice can be issued in terms of a Notification under which goods are cleared subject to certain conditions. Once a notice is not issued under Section 28 the limitations contained therein do not apply. 9. Following the ratio of the decision of the Apex Court cited supra we hold that the impugned order of the Tribunal cannot be said to have been passed ignoring settled position of law. 10. The second ground stated in the application is that the Tribunal did not consider the wr .....

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