2013 (7) TMI 797

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....questions of law:- "Whether the Appellate Tribunal was right in holding that the demand notice dated 1.12.2000 is time barred when the said notice is in time in pursuance of the provisions of Sections 28 and 153 of the Customs Act, 1962 and Sections 8, 9 and 27 of the General Clauses Act, 1897?" 2. The importer herein filed three bills of entry dated 26.5.2000, 4.5.2000 and 28.8.2000 classifying the goods imported viz., Ascorbic Acid BP 98 USP 23 Vitamin C as falling under Customs Tariff Heading 2936.37 which attracted 35% of basic Customs Duty plus 10% surcharge plus 16% countervailing duty. The respondent had sought clearance under Customs Notification NO. 34/97. 3. The Deputy Commissioner of Customs passed an adjudication order ....

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....sue of demand notice had to be taken as a limitation point. Thus, quite apart from the fact that the notice was served on the clearing agent well in time, the notice on the importer served on the assessee was held as well within six months as contemplated under Section 28 of the Customs Act. 5. Aggrieved by this, the unsuccessful importer canvassed the case before the first Appellate Authority. The first Appellate Authority rejected the case of the importer. Aggrieved by the same, the importer went on further appeal before the Customs, Excise and Service Tax Appellate Tribunal. A reading of the Tribunal shows that the issue in appeals before the Tribunal related to three bills of entry, which are as follows:- SL. No Appeal No. B....

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...., the Tribunal thus came to the conclusion that the proceedings were totally time barred. Aggrieved by this, the Revenue is on appeal before this Court. 7. In the present appeal, learned Standing Counsel submitted that the State is challenging the order of the Tribunal only as regards the bill of entry No. 14797 dated 26.5.2000, when the date of payment of duty was 1.6.2000. On the date of expiry of period of limitation i.e. on 1.12.2000, the demand notice was despatched. Learned Senior Central Government Standing Counsel appearing for the Revenue however fairly submitted that notice was served on the assessee only 2.12.2000. Nevertheless, he sought to sustain the notice as one within the period of limitation based on the understanding o....

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....om the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. The six months period of limitation has to be calculated from the relevant date. The 'relevant date' is defined in Section 28(3) of the Customs Act as the date on which the proper officer makes an order for the clearance of the goods or in any other case the date of payment of duty or interest. Given the fact that the payment of duty on the above bill of entry was on 1.6.2000 and going by Section 28 of the Customs Act, the six months time for the purpose of invoking jurisdiction under Section 28 has to be counted from the date of payment of duty i.e. on 1.6.2000. On the facts admitted, with the notice served on 2.12....