2017 (11) TMI 955

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....tiorari for quashing demand letters dated 06.10.2004, 03.11.2004, 17.11.2004 and 14/15.02.2005 issued by Deputy Commissioner, Customs Division, Lucknow and Joint Commissioner I/C, Customs Division, Lucknow, demanding Rs. 47,02,882.00 towards interest alleging to have accrued on delayed payment of arrears of duty of Rs. 22,85,531.00 for which interest was payable by UPSBCL-petitioner under Section 28 of Customs Act, 1962 (hereinafter referred to as "Act, 1962). Break up of computation of interest is appended to said notice. 2. Facts in brief, giving rise to present dispute, are as under: 3. UPSBCL-petitioner is a Company registered under the provisions of Companies Act, 1956 (hereinafter referred to as "Act, 1956), being owned by State....

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....5. An appeal was filed before Collector (Appeals), Allahabad on 14.02.1992, which was dismissed vide order dated 14.08.1992, whereafter UPSBCL-petitioner carried the matter in further appeal to Customs Excise and Gold (Control) Appellate Tribunal, New Delhi (herein after referred to as "Tribunal"). Tribunal granted an interim order dated 12.10.1993 directing UPSBCL-petitioner to deposit Rs. 10 lacs and furnish bank guarantee of Rs. 5 lacs to the satisfaction of Collector, and, subject to same, recovery of balance amount was stayed. Ultimately, appeal was dismissed vide Tribunal's judgment and order dated 29.05.2001. 6. UPSBCL-petitioner filed Civil Misc. Writ Petition No. 134 of 2002, which was dismissed vide order dated 05.05.2003 o....

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....ths, From the relevant date, serve notice on the person chargeable with the duty which has not been levied or which has been so short-levied or to whom the refund has erroneously been made, requiring him to show cause why he could not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or has been erroneously refunded by reason of collusion or any willful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words ("one year" and "six months" the words "five years" were substituted. Explanation- Where the service of the....

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...., though payable, but was not levied, or it was short levied or erroneously refunded by reason of collusion or any willful misstatement or suppression of facts by exporter or importer or its agents, employees etc. Present is a case of short charging of duty for which notice was issued by Proper Authority on 23.07.1990 and after considering petitioner's reply order of demand was passed on 14.12.1991. Section 28 had its relevance only to this extent and not for demanding interest under Section 28AA. No further notice under Section 28 is attracted at this stage. 10. Section 28AA, inserted by Act, 1995, w.e.f. 26.05.1995, reads as under: "28AA. Interest on delayed payment of duty.- (1) Subject to the provisions contained in Sect....

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....first determined to be payable, the date on which the duty is so determined; (b) for the amount of increased duty, the date of order by which the increased amount of duty is first determined to be payable; (c) for the amount of further increase of duty, the date: of order on which the duty is so further increased." (emphasis added) 11. Proviso to Section 28AA gives an opportunity to those where demand under Section 28 has already been raised, but the duty has not been paid, to pay the same within three months from the date of enforcement of Section 28AA, which comes to 26.08.1995. If duty is paid within the aforesaid three months, defaulter would not be liable to pay any interest under Section 28AA, but if defa....