TaxTMI 
TaxTMI 
1984 (12) TMI 175
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....s under Section 116 of the Customs Act, 1962 (to be hereinafter referred to as the Act) for the shortage in landing of lubricating oils of various grades. Being aggrieved with the order, the appellants preferred an appeal before the Appellate Collector. Before the Appellate Collector, the appellants contended that a show cause notice was issued to the appellants after a lapse of more than ten years and therefore it was barred by time under Section 28 (1) of the Customs Act. It was also urged before the Appellate Collector that even if Section 28 is not applicable, the show cause notice issued after a lapse of ten years should be treated as time barred. It was further urged before the Appellate Collector that the vessel after discharging car....
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....er dated 27-12-1974 calling upon them to reply to the show cause notice within 15 days and by their letter dated 30-1-1975 they requested the Asstt. Collector of Customs, Oil Unit to keep the matter open and to allow sufficient time to process the matter as the matter had come up after over ten years. (3) The Appellate Collector ought to have held that the notice issued on 19-10-1974 was barred by limitation. (4) The Appellate Collector ought to have held that since the appellants had not been served with the show cause notice, no proceeding could be held in pursuance of the said show cause notice and the order passed by the Dy. Collector was without jurisdiction and mis-conceived in law. (5) The learned Appellate Collect....
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....isting of several items and when reconciliation was not possible, penalty proceedings are initiated. This balancing takes considerable time and it was done in the interests of the steamer agents and therefore the delay in issuing the show cause notice and that the delay had not resulted in denial of the principles of natural justice. Finally, Shri Gidwani submitted that if the appellants could produce documentary evidence to establish that there had been no shortlanding or shortage in landing of the manifested quantity the department is prepared to accept and remit the penalty. 6. After the arguments were heard on 30-11-1984, Shri B.N. Das learned Advocate for the appellants took time till 7-12-1984 to produce the evidence to est....
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....lapse of a month they requested for some time according to the appellants but then the Department had contended that they had not received any such reply. The appellants have not produced any acknowledgement for their letter dated 30th January 1975. In the circumstances, the contention of the appellants that they had made a request to give them some time to send their reply to the show cause notice has not been substantiated. 10. It was the contention of the appellants after the ship discharged the cargo at Bombay port it sailed to Calcutta port and discharged the remaining cargo. The Asstt. Collector had issued a show cause notice for short discharge and after the receipt of their reply he imposed a penalty of Rs. 1,608/-. As this ....
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....oneously refunded. It has nothing to do with the penalty demanded. The contention of the appellants that penalty under Section 116 should be considered as a duty is unacceptable. The duty payable in respect of the shortlanded goods is taken into consideration for the purpose of quantifying the amount of penalty liable to be imposed on the steamer agents under Section 116. The Act nowhere prescribes a period of limitation for imposing the penalty under Section 116. In the circumstances the contention of the learned Advocate that the demand is barred under Section 28(2) of the Act is not tenable and the same is rejected. 13. The appellants had contended that it would be unreasonable and unjust to call upon them to account for the shor....
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....f six months/one year from the date of payment of duty cannot be allowed unless the duty had been paid under protest or paid provisionally under Section 18 of the Act. Further, duty not levied, shortlevied or erroneously refunded cannot be demanded after a lapse of six months except where the non levy, short levy or erroneous refund was by reason of collusion or any wilful mis-statement or suppression of facts by the party and in that case the period of demand would be five years. Thus, the maximum period contemplated under the Customs Act is only five years. 14. Even though Section 27 and 28 are not applicable to the demand under Section 116, the period of limitation prescribed under those sections cannot be altogether ignored. As ....