TaxTMI 
TaxTMI 
2011 (5) TMI 677
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly issued in the name of M/s. Debits Rs. 1. Symtet 474/ 03.11.98 25,37,471 3628020 14.10.98 Sipla Exports & Marketing 8,88,115 2. Diethyl Thiophosp-horyl Chloride 300051/ 24.11.98 10,15,203 3629067 02.11.98 Readymoney Exports 3,55,321 3. S.B.E. Tetrachloro pyridine 300111/ 27.11.98 15,33,657 3629067 2.11.98 - do - 5,36,780 4. Diethyl Thiophosp-horyl Chloride 301380/ 10.12.98 6,47,789 3627550 9.10.98 Vaibhav Sales 2,26,726 5. - do - 300111/ 24.11.98 11,92,703 3628553 26.10.98 - do - 4,17,446 6. - do - 300091/ 24.11.98 25,25,594 3607414 11.06.98 - do - 8,83,958 7. - do - 1323/ 10.11.98 23,06,740 3607421 11.06.98 - do - 8,07,359 8. - do - 1927/17.10.98 35,54,374 3625760 17.09.98 Gautam Enterprises 12,43,419 9. - do - 301388/ 10.12.98 29,03,696 3630886 24.11.98 Jinture Impex 10,16,294 10. - do - 1323/ 10.11.98 12,32,255 3608357 01.07.98 S. Kirti- Kumar 4,31,289 11. - do - 3218/ 29.10.98 33,04,723 3607539 15.06.98 Ritlene Exports 10,66,514 12. S.B.E. Tetrachloro pyridine 300111/ 27.11.98 10,91,688 3626967 30.09.98 S. Kirti- Kumar 3,82,091 13. - do - 2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s' and that the credit entries shown therein had been allowed without any export of goods. The SCNs cited contravention of condition (ii) of Notification 34/97-Cus. and proposed to recover the duty not paid on the above consignments imported by De-Nocil. Interest on such duty was also demanded. 3. While the above SCNs were pending adjudication, DRI gathered further evidence by way of recording statements or further statements of some of the persons involved in the DEPB racket, obtaining inputs from the DGFT's Mumbai office etc., whereupon the modus operandi of the racketeers became clear and it was also found that all the DEPBs in question had been cancelled ab initio by the licensing authority (Dy. DGFT, Mumbai) during April-June 1999. Later the DRI issued SCN dated 5.10.2001 invoking caveat emptor principle and calling upon De-Nocil to show cause to the Commissioner of Customs (Adjudication), Mumbai, as to why: "(a) demand totalling Rs. 1,09,70,956/- raised vide 19 Less Charge Demand Show Cause Notices issued from time to time by Assistant Commissioner of Customs, Group IIA, Nhava Sheva, under section 28(1) of the Customs Act, 1962 as indicated in Para 65 above should not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....PBs by DGFT did not have retrospective effect. Therefore the demand of duty on the ground of cancellation of DEPBs is not sustainable. (d) After the issuance of 19 SCNs demanding duty on imports made during October-December 1998, the SCN dated 5.10.2001 for confirming the demand of duty was issued without the sanction of law and, therefore, it should be considered as an independent proceeding under Section 28 of the Customs Act. This SCN was issued beyond the normal period of limitation without alleging against De-Nocil collusion, willful misstatement of facts or anything else required to invoke the extended period of limitation. Hence the demand of duty is barred by limitation. (e) As the goods were not prohibited under the Customs Act or any other law and as any condition of Notification 34/97-Cus. was not violated by the importer, the goods are not liable to confiscation under clause (d) or (o) of Section 111 of the said Act and the importer cannot be penalized under Section 112 of the Act. Further, there can be no penalty on the importer under Section 114A of the Act where the demand of duty on them under Section 28 of the Act is not sustainable. 5. Afte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on: 9.1 It is not in dispute that all the DEPBs in question were cancelled ab initio by the licensing authority on the ground that the documents (SBs and BCERs) on the basis of which the DEPBs had been issued were forged and fake. One of the contentions raised by De-Nocil is to the effect that as the cancellation of DEPB licences was without notice to them, it cannot affect their right qua bona fide purchaser. But they have not shown us any provision of law which obligates the licensing authority to put transferees of DEPB licence also to notice of a proposal for cancellation of the licence, nor has their counsel argued that the rule of natural justice requires the transferees also to be heard before cancellation of the licence. In any case, the fact remains that De-Nocil, who learnt at least from SCN dated 5.10.2001 that the DEPB licences had been cancelled ab initio by the licensing authority did not choose to challenge that authority's order. 9.2 We have also examined the evidence gathered by DRI, which includes (i) statements (recorded under Section 108 of the Customs Act) of the persons who played various roles in forging SBs and BCERs and obtaining DEPB licences mostl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he said Corporation had imported in October 1986 two consignments of polyester filament yarn under four REP licences issued by the Chief Controller of Imports and Exports (CCIE). They were transferees of the licences. The goods were assessed under Section 17 of the Customs Act and allowed under Section 47 of the Act to be cleared for home consumption. Later on, in adjudication of a show-cause notice issued by the Directorate of Revenue Intelligence (DRI), the Collector of Customs, Bombay ordered absolute confiscation of the goods under clauses (d), (l), (m) and (p) of Section 111 of the Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and imposed a penalty on the importer under Section 112(a) of the Customs Act. In his order, the Collector noted that the aforesaid licences had been cancelled ab initio by the licensing authority (CCIE) by order dated 18.12.1986 on the ground that the original licensee had obtained the licences fraudulently.He held that there was no licence in existence at the time of import and the goods had been imported in contravention of the provisions of the Imports and Exports (Control) Act and hence liable to be confiscated unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s on 26th August and 7th September 1987. Subsequently, the Customs authorities and the importer received copies of the CCIE's order dated 11th September 1987 suspending the operation of the licences under clause 9(3) of the Import and Export (Control) Order, 1955. In the wake of this development, the Customs authorities withheld clearance of the goods on the premise that the import was without valid licence, against which the party moved the High Court under Article 226 of the Constitution of India. The licences in question, eventually, came to be cancelled by the CCIE by order dated 30.11.1987 in adjudication of a show-cause notice which had been issued to the original licensee on 11.9.1987. The High Court, after considering the apex court's judgment in Sneha Sales Corporation's case and the Kings Bench decision in Master vs. Miller [4 T.R. 320], held that the effect of fraud was not to render the transaction void ab initio but to render it voidable at the instance of the party defrauded and that the transaction continued to be valid until the said party decided to avoid it. It was also observed that 'the concept that fraud vitia....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... benefits which were legitimately available to them. It is also worth noticing that the assessee-respondent was never issued any show cause notice before cancelling the DEPB which was obtained by M/s Parker Industries and obviously the notice was also to be issued to them alone." A Special Leave Petition (SLP) filed by the Commissioner against the above decision of the High Court was dismissed by the Hon'ble Supreme Court [2008 (227) ELT A29 (SC)] thus: "The Special Leave Petition is dismissed both on the ground of delay as also on merits." 9.6 In the case of Ajay Kumar & Co. vs. Commissioner [2006 (2005) ELT 747 (Tri.-Del)], the assessee had utilised for duty-free import of goods in terms of Notification No.34/97-Cus., two DEPB scrips procured from M/s. Vivek Impex Pvt. Ltd. who had acquired the same from M/s. Parker Industries, the original licensees, who had obtained the scrips from the DGFT. After the licensing authority cancelled the DEPB scrips on the ground that the same had been obtained by M/s. Parker Industries fraudulently, the department initiated action under Section 28 of the Customs Act for recovery of duty from the assessee in respect of the goods import....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en effected without notice, to the transferee, of alleged fraud, the concept of fraud vitiate everything is not applicable as licence was transferred for value arising out of importable transaction governed by any law.' A Civil Appeal filed by the department against the Tribunal's LB decision was dismissed by the Hon'ble Supreme Court in Commissioner vs. Hico Enterprises [2008 (228) ELT 161 (SC)]. 9.8 In the case of Commissioner vs. Vallabh Design Products [2007 (219) ELT 73 (P&H)], the assessee had imported goods without payment of duty in terms of Notification No.34/97-Cus. by making use of a DEPB scrip which was transferred to them by M/s. Parker Industries who had obtained it from the Joint DGFT fraudulently on the basis of forged BCERs. When the fraud came to light, the Jt. DGFT cancelled the DEPB. After noting this fact, the Commissioner of Customs ordered recovery of duty with interest from the importer and imposed a penalty on M/s. Parker Industries. He refrained from imposing penalty on the assessee in the absence of any evidence indicating that they colluded with the exporter or purchased the DEPB scrip otherwise than in a bona fide manner.An appeal filed by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "27. Admittedly, in the present case, the DEPB licence were cancelled long after the importer used the documents for clearance of coal. On the date of import, the licence, lawfully issued by the competent authority, were valid and operative. In other words, the imports were made under valid licences. Hence the emphasis placed on 'ab initio' by the JCDR is inconsequential. Yet another case law cited by the learned counsel is on the question whether the rights of a bona fide purchaser of DEPB licence could be affected by its subsequent cancellation. Here again, the answer is against the Revenue and in favour of the importer vide Hico Enterprises (supra). In this context, it needs mention that M/s. Binani Cement Ltd. acted upon the DEPB licences believing that they were legally valid documents under which they could claim benefit. The Revenue also acted upon the transaction with the same belief. I am of the considered view that it is not open to the Revenue to say that the DEPB licences used by the importer were not legally valid documents at the time of the imports." 9.11 In the case of Commissioner vs. Jupiter Exports [2007 (213) ELT 641 (Bom.)], the Hon'ble High Court held as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cer concerned. When this dispute eventually arose before the Tribunal, the demand of duty and interest thereon came to be upheld. In a subsequent appeal filed by the party against the Tribunal's decision, the Hon'ble High Court held:- "In this case, the document itself having been found to be forged whether there was collusion or fraud on the part of the appellant in the issue of the DEPB licences/scrips becomes absolutely immaterial and irrelevant since no credit can be derived from a forged DEPB. The credit is made available on the strength of a valid DEPB. If the DEPB is forged, then the same is non est and therefore, there is no valid DEPB. As such no credit can be derived thereunder. In such circumstances, one may defend his case that one may not be liable for collusion or fraud and exposed to other penalties therefor, but still then one would be liable to pay the duty and interest and for other statutory consequences which one cannot avoid." A SLP filed by the party against the above order of the High Court was dismissed by the Supreme Court vide 2005 (187) ELT A31 (SC). 9.14. In the case of Friends Trading Company vs. Commissioner [2006 (202) ELT 611 (Tri.-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orter's appeal observed, inter alia, thus: "It is settled principle of common law that a purchaser steps into the shoes of the seller and does not acquire better title than the seller. This principle has also been recognized under Section 27 of the Sale of Goods Act, 1932". 9.16 In the case of Golden Tools International vs Joint DGFT [2006 (199) ELT 213 (P&H)], the Hon'ble High Court dismissed two writ petitions filed against the order passed by the Additional Director-General of Foreign Trade [appellate authority under the Foreign Trade (Development & Regulation) Act, 1992] upholding the order passed by the Assistant DGFT cancelling a DEPB ab initio under Section 9 (4) and levying penalty under Section 11 (2) of the said Act. The DEPB was cancelled on the ground that it had been obtained by the petitioner by producing forged documents (BCERs). The Hon'ble High Court rejected the contention that 'cancellation of DEPB ab initio was not contemplated under Section 9 (4) of the Act particularly when the period of its validity was over.' SLP No. 5472/2006 filed against the High Court's judgment was dismissed by the apex court by order dated 3.4.2006. 9.17 I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hose who abided by the law. In this connection, reliance was placed on para (25) of the apex court's judgment in Corporation Bank vs Saraswati Abbaransala [2009 (233) ELT 3 (SC)]. 9.19 In the case of Sterlite Industries (I) Ltd (vide supra), it was also held by the Hon'ble High Court, on the facts of the case, that the equitable doctrine of promissory estoppel was not invocable against the Central Excise authorities in relation to the exemption claimed by the petitioner-company under Notification No. 108/95-CE dated 28.8.1995 (as amended) on the strength of the certificates issued by the respondent (TCAPL). The said Notification exempted from payment of BED and AED (GSI) all excisable goods when supplied to projects financed by the United Nations or an international organization and approved by the Government of India., Where the project was approved by the Government of India for implementation by a State Government, a certificate issued by the executive head of the Project Implementing Authority (TCAPL, in this case) and countersigned by the Principal Secretary to the State Government certifying that the goods were required for the execution of the project a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... against the Central Government or the Excise authorities." 9.20 Commissioner vs. Pioma Industries & Imperial Soda Factory [1997 (91) ELT 527 (SC)], wherein a point of law, not raised before the Tribunal, was allowed to be raised before the Supreme Court, was cited by JCDR in the context of contending that the DEPBs used by De-Nocil were liable to be considered as fake and non est rather than as genuine documents obtained by the original licensees on the basis of forged shipping bills etc. This contention was raised when it was pointed out by the counsel for De-Nocil that none of the show-cause notices had alleged that the DEPBs themselves were forged or otherwise fake. JCDR also relied on Macnair Export (P) Ltd vs Commissioner [2002 (142) ELT 593 (Tri-Bang)] wherein it had been held that a jurisdictional objection could be raised at any stage of the proceedings. The Commissioner's Civil Appeal against the decision was dismissed by the Supreme Court 'on the ground of delay as well as on merits' vide 2003 (152) ELT A87 (SC). 9.21 In Sneh Exports vs Commissioner [2006 (202) ELT 7 (SC)] it was held that 'a situation contemplated under one statute cannot, in absence of an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot applicable to this case. DISCUSSION 9.24. All the DEPBs in question were issued, utilized and cancelled during the period of the Export & Import Policy (1-4-1997 to 31-3-2002) issued under the Foreign Trade (Development & Regulation) Act, 1992. Para 7.25 in Chapter 7 of the Policy described the DEPB scheme as follows:- "The objective of Duty Entitlement Pass Book Scheme is to neutralize the incidence of basic customs duty on the import content of the export product. The neutralization shall be provided by way of grant of duty credit against the export product. The duty credit under the scheme shall be calculated by taking into account the deemed import content of the said export product as per Standard Input Output Norms and determine basic customs duty payable on such deemed imports. The value addition achieved by export of such product shall also be taken into account while determining the rate of duty credit under the scheme. Under the Duty Entitlement Pass Book (DEPB) scheme, an exporter shall be eligible to claim credit as a specified percentage of f.o.b. value of exports made in freely convertible currency. The credit shall be available against such export ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e REP licences considered by the Hon'ble High Court in Taparia Overseas case did not require the licensing authority's endorsement for transferability under the Import & Export Policy (April 1985 - March 1988) issued under the FT(D&R) Act. We have perused Chapter XIV ("Import Policy For Registered Exporters") of the Policy; para 223 provided a scheme for duty-free import of raw materials against REP licences issued against exports of specified products, and also stated that REP licences issued under the scheme would be freely transferable and would not be subject to "actual user" condition. It was laid down in para 225 that, except for certain specified cases, a licence-holder could transfer the licence in full or part in favour of any other person. Para 226 provided as under: "The transfer of the licence will not require any endorsement or permission from the licensing authority i.e., it will be governed by the ordinary law. Accordingly, clearance of the goods covered by an REP licence issued under this policy, will be allowed by the customs authorities on production, by the transferee, of only the document of transfer of the licence concerned in his name. Whenever an RE....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....26. The learned counsel argued that, as DEPB scrip was equated with REP licence by the Hon'ble Supreme Court in Yasha Overseas, decisions rendered in cases like Taparia Overseas and Sneha Sales Corporation involving duty-free import of goods by transferees of REP licences should be followed in the present case. The argument is not acceptable for the reason that the apex court was only treating DEPB scrip and REP licence as "goods" for purposes of Sales Tax laws. The court did not compare the two from the point of view discussed in para (9.25) above. As rightly submitted by the learned JCDR drawing support from the Hon'ble Supreme Court's decision in Sneh Exports, a situation contemplated under Sales Tax Act cannot, in the absence of any intendment, be given effect to while applying the provisions of the Customs Act or the Foreign Trade (Development & Regulation) Act. 9.27. In the present case, the DEPBs were cancelled ab initio by the licensing authority after the appellant utilized them for duty-free clearance of the imported goods in terms of Notification No. 34/97-Cus. In the case of Golden Tools International, the Hon'ble Punjab & Haryana High Court examined the scope of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llation orders had attained finality vis-a-vis the appellant who did not choose to challenge those orders under the appellate provisions of the FT(D&R) Act. 9.28. The learned JCDR has argued that, as the SBs referred to in the Annexures to the DEPBs were forged, the DEPBs themselves were liable to be treated as forged. But there was no such allegation in the show-cause notices. The allegation was that the DEPBs were obtained by the original allottees by producing forged SBs and BCERs. Therefore, the Revenue cannot be heard to say that the DEPBs per se were forged. Whether a DEPB is forged is not a pure question of law to be allowed to be raised for the first time at this stage. This situation, however, cannot be decisive for the appellant. The learned counsel has contended that a DEPB issued on the basis of forged documents cannot be void ab initio but only voidable at the instance of the affected party and the same is valid till it is cancelled by the authority which issued it. He has also relied on case law on the point. But the question before us is significantly of a different hue and the same is whether any credit of duty can be said to have ever accrued to, or....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order] are similar to the facts of the present case. In that case, the High Court, following its own decision in the case of Munjal Showa Ltd. [vide para (9.15) of this order], held that the assessee (transferee of DEPB scrips which had been obtained by the original allottee by producing forged BCERs) was not entitled to the benefit of the DEPB scrips which were cancelled ab initio by the licensing authority after "utilization" of the scrips by the assessee for duty-free clearance of the goods imported by them. The assessee was held liable to pay the duty leviable on the goods. The SLP filed by the assessee was dismissed by the Supreme Court. A Review Petition filed by them was also dismissed by the Court by order dated 20.01.2010 which reads: "We have gone through the review petition and the relevant documents. There is delay in filing the review petition. In our opinion, no case for review of our order is made out both on the grounds of delay as well as on merits and accordingly the review petition is dismissed". [underlining supplied] Obviously, the above order was passed by the apex court after considering the records of the case. It was an o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... allegedly fabricated. These and allied allegations were raised against the transferors of the DEPBs. The appellant would only say that they were bona fide transferees of the DEPBs without notice of the above fraud committed by the transferors. Therefore, in our view, the appellant cannot claim support from the above judgments of the apex court. 9.32. Notification No. 34/97-Cus. exempted goods imported into India, from BCD and CVD subject to six conditions, the first three reading as follows:- "(i) That the importer has been issued a Duty Entitlement Pass Book by the Licensing Authority in pursuance of paragraph 7.25 read with paragraph 7.29 of the Export and Import Policy (hereinafter referred to as said Duty Entitlement Pass Book). (ii) The importer has been permitted credit entries in the said Duty Entitlement Pass Book at the rates notified by the Government of India in the Ministry of Commerce for the products exported or has been allowed a provisional credit in the said Duty Entitlement Pass Book by the Licensing authority to be set-off by the credits earned on exports to be subsequently effected; (iii) The said Duty Entitlement Pass Book is produced before th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation 34/97-Cus. when strictly construed. It is trite law that an Exemption Notification requires to be strictly interpreted (vide Rajasthan Spinning & Weaving Mills, Sterlite Industries etc.) and the benefit of any doubt has to be given to the Revenue (vide Novopan India). Therefore, we hold that the appellant is not entitled to claim the benefit of the Notification. Issue No. I stands answered in the affirmative against the assessee. 10.0.Issue No. II: Whether it was open to the department to demand duty from the appellant under Section 28 of the Customs Act without successfully challenging the assessment by recourse to Section 129 D (2) of the Customs Act: 10.1. In the memo of appeal, the appellant has contended that, as the duty liability on the imported raw materials had been discharged under DEPB Scheme on the basis of assessment of the Bills of Entry by the proper officer of Customs, there is no question of non-levy or non-payment of duty and, therefore, the provisions of Section 28 of the Customs Act were not invocable without recourse to the statutory procedure of revision of assessment. This contention is not acceptable as it is contrary to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of the appellant's counsel that when the goods were already cleared, no demand notice can be issued under Section 28 of the Act is accepted, we will be rendering the words 'where any duty has been short-levied' as found in Section 28(1) of the Act as unworkable and redundant, inasmuch as the jurisdiction of the authorities to issue notice under Section 28 of the Act with respect to the duty, which has been short-levied, would arise only in the case where the goods were already cleared. Hence we hold that it was open to the Department to demand duty from the appellant under Section 28 of the Customs Act without recourse to any other procedure of revision of assessment. 11.0. Issue No. III: Whether, in the facts of this case, the demand of duty is barred by limitation. 11.1. The learned counsel for the appellant reiterated the relevant submissions of De-Nocil contained in their reply to show-cause notice dated 5.10.2001, which we have summarized in para 4 (d) of this order. In this connection, he relied on Geo Tech Foundations & Constructions vs Commissioner [2008 (224) ELT 177 (SC)] wherein a demand of Central Excise duty was held to be time-ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly, after gathering further evidence by way of recording statements of the persons involved in the DEPB racket, obtaining inputs from the DGFT's office etc, the DRI issued show-cause notice dated 05-10-2001 to the appellant for recovery of the sum of the amounts of duty demanded in the aforesaid 19 show-cause notices, under Section 28(1) of the Customs Act, with interest thereon under Section 28AB of the Act. As is indicated in para 70 of this show-cause notice dated 05-10-2001, it was issued to cover all the additional facts of the cases in addition to the facts covered in the 19 less-charge demanded notices issued to De-Nocil for importing consignments against DEPBs obtained by the racketeers on the basis of forged Shipping Bills and BCERs. 11.4. It has been argued by the ld. Counsel that the show-cause notice dt. 05-10-2001 is an independent show-cause notice and the demand of duty raised therein is barred by limitation inasmuch as the notice did not allege any fraud or other ingredients of the proviso to Section 28(1) of the Act against the appellant. In this connection, he has relied on the Hon'ble Supreme Court's judgment in Geo Tech Foundations & Constructions. In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nue. In that case, the Collector of Central Excise had issued a show-cause notice dt. 20-02-1986 in continuation of 2 earlier show-cause notices dt. 06-12-1982 and 02-04-1983 issued by the Superintendent of Central Excise demanding duty for the period from 02-12-1981 to 26-02-1982. The challenge set up by the assessee against the Collector's show-cause notice was rejected by the Supreme Court. 11.5. As the demand of duty was raised within the normal period of limitation in this case, issue No.III has to be answered in the negative against the appellant. Ordered accordingly. 12.0. Issue No.IV: Whether the appellant is liable to pay interest on duty under Section 28AB of the Customs Act. 12.1. Section 28AB as it stood from the date of its enactment (28-09-1996) to the date of its amendment (11-05-2001) reads as under:- "28AB.?Interest on delayed payment of duty in special cases. - (1) Where any duty has not been levied or has been short levied or erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts, the person who is liable to pay the duty as determined under sub-section (2) of section 28, shall, in addition....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not satisfy condition No.(ii) of Notification No.34/97-Cus., they ought to have paid duty on the goods imported by them. The duty 'not levied' on the goods was demanded under sub-section (1) of Section 28 of the Customs Act by the department by issuing the subject show-cause notices and the same has been determined by the Commissioner under sub-section (2) in adjudication of the said show-cause notices. In this factual situation, the assessee has to pay interest on the duty amount under sub-section (1) of Section 28AB as amended. However, no interest is leviable for any period prior to 11-05-2001 as sub-section (2) of Section 28AB forbids levy for past period. Accordingly, we hold that the appellant is liable to pay interest on duty under Section 28AB from 11-05-2001 to the date of payment of duty. 13.0. Issue No. V : Whether the penalty imposed on the appellant under Section 114A of the Customs Act is sustainable. 13.1. Section 114A (without the provisos thereto) reads as under: "114A. Penalty for short-levy or non-levy of duty in certain cases -Where the duty has not been levied or has not been short-levied or the interest has not been charged....