2011 (5) TMI 604

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....ainst imposition of penalty of Rs. 3 lakh by the same impugned order.   1.3 As both appeals arise out of the same impugned order, they are disposed of by this common order.   2. Heard both sides.   3.1 Learned Advocate made a preliminary submission which deserves to be considered. It was submitted that the import of mares took place in January, 99 and the bill of entry was assessed and the duty was paid on 21.1.99 and therefore five years period for demand of duty under section 28 expired on 20.01.2004. the show cause notice though dated 20.1.2004 was actually served on the appellant only on 23.1.2004. Since the show cause notice has been served after the expiry of five years, the entire proceeding proposing confiscat....

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....n if the demand is held to be time barred, the proposal for confiscation and penalties could be issued under Section 124 of the Customs Act and there is no time limit prescribed in the said section and therefore the confiscation and imposition of penalty should be upheld.   4.3 Learned SDR relied on the decision in the case of S.A. Plywood Industries Ltd. vs. CCE, Siliguri-2010 (17) STR 616 (Tri.-Kolkata)   5.1 We have carefully considered the submissions and perused the records. It is not disputed that the duty as per assessment of the bill of entry was paid on 21.1.99. It is claimed by the Department that the clearance of mares was granted on 22.1.99. The show cause notice for recovery of duty not levied or short levied or err....

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....ed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or six months or five years, as the case may be.   (2) The proper officer, after considering the representation, if any made by the person on whom notice is served under sub-section (1), shall determine the amount of duty or interest due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount determined.   (3) For the purposes of sub-section (1), the expression "relevant date" means -   (a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of the goods; &nbs....

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....ent. The service on a friend of the appellant director cannot be treated as valid service and therefore the service said to have been made on Ms. Ritika Goel cannot be treated as valid service. As a result, it is seen that the notice has been served only on 23.1.04 beyond the period of five years stipulated for service of notice under section 28 invoking the extended period. Therefore, the order of the Commissioner demanding duty by issuing notice beyond five years cannot be sustained. The decision relied by the appellants clearly supports the view as above.   6.3 It was being contended that Section 124 does not prescribe any time limit for proposing confiscation of goods and imposition of penalty. It is to be seen that show cause not....