2009 (2) TMI 557

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..... 522 (T). 3. We heard both sides. 4. The appellant filed Bills of Entry for clearance under the DEPB scheme seeking duty exemption vide Notification No. 45/2002-Cus., dated 22-4-2002. The appellant availed the duty exemption on the strength of Telegraphic Release Advice (TRA) issued by Nhava Sheva Custom House. The Nhava Sheva Custom House issued a list of DEPB release advices issued by them for the period from 1-1-2003 to 31-3-2003. The appellant used release advices No. 3168, 3169 both dated. 4-3-2003. However, the said release advices were not appearing in the list sent by Nhava Sheva, therefore, confirmation for the genuineness of the release advice received was sought from Nhava Sheva Custom House. The said Custom House in....

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....f penalty where the alleged short levy or non-levy is due to mis-declaration or suppression of facts. In the present case, there is no mis-declaration or suppression. Alleged fact of mis-declaration or suppression can be only if the assessee is in the knowledge of the fact and does not disclose or suppress. Appellant themselves are victim of circumstances, hence, invoking Section 114A is not correct. 5. On a very careful consideration of the issue, we find that the appellant initially approached the Cochin Customs House along with DEPB/TRA purported to have been issued from Nhava Sheva Custom House. Investigations revealed that the Nhava Sheva Custom House did not issue the TRA. The Commissioner further has recorded in the Adjudicatio....