TaxTMI 
TaxTMI 
2014 (9) TMI 400
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....f law :- "Whether in the facts and circumstances of the cases the conclusion arrived by the Tribunal that the goods imported are Mulberries Silk Grade IV A which did not attract Anti-dumping duties and as such the issuance of the show cause notice after the period prescribed cannot be legally sustainable as there is no intention on part of the importer to evade duty is correct or not?" 2. The facts are that the respondent/assessee filed bill of entry No. 641711, dated 15-6-2004 declaring the goods as Mulberry Raw Silk of 20/22 4A Grade, 1197.98 kgs, unit price USD 18.50 per kg CIF and sought for clearance under DFRC scheme vide Notification No. 46/2002-Cus., dated 22-4-2002. On Examination, samples were drawn in the presence of C....
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....why penalty should not be imposed under Section 112(a) of the Customs Act, 1962 and penalty equivalent to the duty evaded in respect of the Bill of Entry dated 15-6-2004 should not be imposed on the importer under Section 114(a) of Customs Act, 1962 as the duty evasion has occurred on account of willful misstatement and suppression of facts. 3. The respondent/importer submitted that their reply dated 21-2-2005 stating that show cause notice issued was void and that the enhancement of value as against the declared value is not relevant for determining value in terms of the Customs Law and as such enhancement of value done is deemed to have been done only at the level of an Asst./Deputy Commissioner of Customs in terms of Section 14 o....
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....orter being aggrieved, preferred appeal before the Commissioner (Appeals) contending that the demand is time barred; it was a question of short levy and not non-levy and hence Clause (a) of Section 28(3) is not applicable and the certificate issued and the classification of the goods based on the certificate issued by the Government Agency of China cannot be termed as misdeclaration. 6. The Department submitted that it is a clear case or non-levy of duty and not short levy of duty; the additional duty equal to the Central Excise Duty is leviable under Section 3 of the Customs Tariff Act and anti-dumping duty is leviable under Section 9A of the Customs Tariff Act and therefore, it is a case of non levy of duty and the demand was not ....
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....herefore, cannot be taken as case of mis-declaration intentionally to evade payment of anti-dumping duty on the imported goods. Further the Tribunal held that the conclusion arrived at by the First Appellate Authority that it was a case of non-levy on the goods. The Tribunal pointed out that any short levy on the goods including non levy under a particular act will be covered by clause (d) of Section 28(3) of the Act; the respondent, having paid the duty on 8-7-2004, the show cause notice issued on 12-1-2005 is beyond six months and barred by limitation and therefore, determined that Section 28(3)(a) of the Act could not be invoked as it is not a case of non levy; hence, it was held that the notice was barred by limitation. Aggrieved by the....
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....ort, it clearly shows that the assessee was aware of the aware of the quality/grade of the imported goods and trying to escape the rigour of anti-dumping duty. Further more, the respondent themselves accepted that the certificate produced from the Republic of China was rejected in preference to the certificate issued by the Central Silk Board and further more, the respondent did not question the certificate issued by the Central Silk Board classifying the product as 2A grade in the appeal filed before the Tribunal. 12. The next question which has to be considered is a to whether it is a case where the Department was justified in invoking the larger period of limitation and the effect of Section 28(3)(a) of the Act. Section 28(3)(a) ....