2009 (1) TMI 616

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....so seeks waiver of pre-deposit and stay of recovery of penalty of Rs. l lakh imposed on Keltron. During the period August, 2002 to May, 2005, the appellants had availed exemption from payment of Basic Customs Duty applicable to 'parts of resistors' on imports of varistors misdeclating their description. In the impugned order, the Commissioner found that the appellants had deliberately misdeclared the description of the goods imported to avail the inadmissible benefit extended under Notification No. 25/99-Cus., dt. 28-2-1999 which inter alia exempted 'parts of resistors' from payment of Customs duty. During investigation Shri Varghese Varkey, Manager (Materials) of Keltron had confessed that the goods involved were falsely described as as 'c....

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....Act provided for issue of Show Cause Notice to demand duty short-levied or not levied after the imported goods were cleared. In the facts of the case, the Commissioner had correctly held that 8,45,000 pieces of Metal Oxide Varistors valued Rs. 4 lakhs under seizure were liable for confiscation under Section 111(m) of the Act. The demand of duty of Rs. 7,07,025/- under Section 28(2) of the Act and penalty of Rs. l lakh imposed on Keltron under Section 112(a) of the Act were legal and proper and deserved to be sustained. 4. I have considered the facts of the case and the rival submissions. Correct classification of goods imported and its assessment are functions of the department. In the instant case the goods were imported by a State....

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....s Ltd. v. Commissioner of Customs & Central Excise, Goa reported in 2008 (227) E.L.T. 133 (Tri.-Mumbai). The third decision cited is a stay order. In the other two decisions, the Tribunal held that demand could not be made under Section 28 of the Act without successfully challenging the finalized assessment. I find that this ratio of the decisions of the Tribunal is inconsistent with the Apex Court's judgment in Union of India v. Jain Shudh Vanaspati Ltd. reported in 1996 (86) E.L.T. 460 (S.C.) cited by the ld. JDR. In the said judgment, the Hon'ble Supreme Court dealt with the specific issue whether a Show Cause Notice under Section 28 of the Act could be issued to demand duty once the goods imported had been cleared, without revising t....