TaxTMI 
TaxTMI 
2017 (9) TMI 1137
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....uty exemption certificates (CDECs) purportedly issued by the OEF, Kanpur. 3. The customs department received inputs from Chief Vigilance Officers, Ministry of Defence, Ordnance Factory Board, Kolkata through the Chief Vigilance Officer, CBEC, New Delhi informing that M/s. Anurag Trading Co. had imported machinery and spares for supply to OEF, but did not pay customs duty in view of the customs duty exemption certificate produced by them with the signature of the General Manager OEF. It was further informed that the General Manager, OEF has not issued any such customs duty exemption certificates and that the firm had committed fraud. On the basis of the above, information, the SIIB attached to Commissioner of Customs carried out investigation. On completion of investigation a show cause notice dated 08.07.2011 was issued in respect of five Bill of entries in which goods were allegedly imported by M/s. Anurag Trading Co. without payment of duty on the basis of forged customs duty exemption certificate. Vide the above show cause notice customs duty amounting to Rs. 21,05,024/- was proposed to be recovered. Further, penalties were proposed under section 112(a) and 114 A of the Customs....
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....edings, which are not relevant for the BOEs involved in the present proceedings. ii) The cross examination of various officials of OEF, Kanpur, whose statement have been relied upon in the SCN were sought before the adjudicating authority. However, the same has been denied. iii) The Revenue has not produced any report of any expert relating to alleged forgery of the CDECs. iv) With reference to the demand for the amount of Rs. 2.19 crores under section 28B of the Customs Act, it is argued that the appellant has not charged any amount from OEF which represented duty of customs on the goods which are wholly exempted. Since, the investigation clearly indicates that they have not charged any amount, there is no justification for such demand under section 28B also. v) The show cause notice dated 06.03.2013 covering the period on 14.08.1996 to 23.11.2006 is hit by limitation as it is badly delayed. 8. The M/s. Trinetra Impex Pvt. Ltd. in the appeal filed by them has submitted that they had filed the relevant Bills of Entry on the basis of imported documents along with original exemption certificate issued by OEF Kanpur. Hence, they cannot be held responsible for any fraud committ....
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.... show cause notices dated 08.07.2011. 12. From the record of the case, we find that Revenue has not recovered and furnished to the appellant copies of the CDECs said to have been used for claiming duty free import of the goods. However, it is further seen that the goods were imported by the appellant for supply to the Ordinance Factory, Kanpur. There is no dispute with reference to the receipt of such goods by OEF Kanpur. The GM, OEF has categorically confirmed that the OEF has never issued any CDECs in favour of M/s. Anurag Trading Co. to facilitate duty free import for supply to the OEF. The same fact has also been undoubtedly affirmed by various officials of OEF whose statements were recorded by Revenue during the course of the investigation. The appellant has never challenged the truth or veracity of any such statements. Further, it is seen that Shri Shyam Mehrotra, Proprietor of M/s. Anurag Trading Co. has admitted in his various statements before the investigating officers that the goods were imported without payment of duty on the basis of the CDECs. 13. Upon careful consideration of the entire facts of the case on record, and perusal of record, we find that the appellant ....
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.... limit applicable for demand of customs duty under section 28 ibid is also applicable to the recovery of amount under section 28B. In this connection, following case laws have been cited: i) Gem Cables & Conductors Ltd. Vs. CC Hyderabad, 1994 (72) ELT 848 (Mad.) ii) Tamilnadu Asbestos (pipes) Vs. CCE Trichy 2009 (238) ELT 473 (Tri-Chennai) iii) Siddeshwar SSK Ltd. Vs. CCE Aurangabad 1997 (92) ELT 616 (Tri). 16. We have gone through the case laws cited above. Even though the decisions have been rendered in the context of section 11D of the Central Excise Act, we note that section 11D is pari materia with section 28B of the Customs Act. By considering time limit of five years specified under section 28, we find that the entire demand raised under section 28B in show cause notice dated 05.03.2013 becomes hit by time bar. Consequently, entire demand confirmed by the adjudicating authority with reference to show cause notice dated 06.03.2013 are hit by time bar and hence is to be set aside. Consequently, there will also be no justification for imposition of any penalties. 17. In view of the above discussion, we pass the following order: The demand for customs duty under section 28....