TaxTMI 
TaxTMI 
2019 (9) TMI 1112
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....y, I pass the following order: (i) The imported goods namely, OFS is classifiable under CTH 90011000; benefit of Notification No 024/2005-Cus is not available for them. (ii) An amount of Rs. 14,99,939/- (out of the total demand for Rs. 92,94,731/-) is hereby confirmed under Section 28(2) of CA 62. (iii) Appropriate interest has to be paid on the aforesaid confirmed amount under Section 28AB of the CA 62. (iv) There shall be no order regarding confiscation of the goods. (v) There shall be no penalty on the noticees." 2.1 Respondents were engaged in importation of "48F Optical Fibre Cable" by classifying them under CTH 85447090 and claiming the benefit under Notification No 24/2006-Cus dat....
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....s. 92,94,731/- (Rupees Ninety Two Lakhs Ninety Four Thousand Seven Hundred and Thirty One only) equivalent to the duty exemption availed on the goods viz OFC imported and cleared by availing undue benefits under Notification No 24/2005 dated 01.03.2005 as amended should not be demanded from them under proviso to Section 28(1) of the Customs Act, 1962. (iv) The amount of Rs. 92,94,731/- deposited voluntarily should not be appropriated against differential duty liability in respect of the imports mentioned at Annexure A to this notice. (v) Interest should not be recovered from them on duty short levied/ short paid in terms of Section 28AB of the Customs Act, 1962. (vi) Penalty should not be imposed upon them under s....
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....es not arise in terms of Section 28(2B). Therefore, the adjudicating authority has erred in not appropriating the differential duty amount of Rs. 77,94,792/- which was paid voluntarily by the importer prior to the issuance of Show Cause Notice. The only issue open legally was to determine imposition of penalty by examining facts relating to collusion, wilful mis statement and suppression of facts." 3.2 In there cross objections respondents have stated as follows: • DRI has no authority to collect the duty during the investigation. Further, any amount deposited during the pendency of investigation is in the nature of deposit. Such deposit cannot be towards payment of duty; • OFC imported is correctly classifiable....
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....f such payment in writing, who, on receipt of such information, shall not serve any notice under sub-section (1) in respect of the duty or the interest so paid : Provided that the proper officer may determine the amount of short-payment of duty or interest, if any, which in his opinion has not been paid by such person and, then, the proper officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" or "six months" as the case may be, referred to in sub-section (1) shall be counted from the date of receipt of such information of payment." 4.4 Interpreting the said sub section, Hon'ble Karnataka High Court has in case of Powerica Ltd [2012 (276) ELT 302 (Kar)] held as follows:....
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.... been issued in respect of any amount whether deposited or not deposited, by invoking extended period as per the proviso to Section 28(1), the adjudicating authority is bound to determine the issue as per the notice issued. In case he arrives at finding that extended period is not invokable he is duty bound to drop the demand to the extent it is not maintainable, even if the amounts have been deposited prior to issuance of notice. Similar view has been expressed by the Larger Bench of Tribunal in case of Al-Falah Exports 206 (198) ELT 343 (TLB)] in following words: "1.2 We have heard ld. Advocates and ld. DR and have considered the submissions made. After considering the material it is found. (a) Causes for arriving at pen....
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....t, 1962. (c) Since legislative prescribed procedure, is not to issue notice, in cases where payments of the amounts at a time prior to the notice have been effected, is without any preconditions as regards causes/reasons for such payments required to be made or effected, it would not make a difference whether such duty was paid before or after the intervention by the departmental officers in any form or manner, this would include the fact of search, seizure etc. Therefore we cannot find the view taken in the case of M/s. Saheli Synthetics Pvt. Ltd. vide Order Nos. A/681 to 683/2005-WZB/C-III, dtd 19-7-2005 to uphold that there is a call for a differentiation, in approach based on reasons of intervention by the department; rendering....