TaxTMI 
TaxTMI 
TaxTMI 
2026 (2) TMI 40
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....s the sale proceeds of Rs. 25,00,000/- under section 121 of the Customs Act. 2. It transpires from the records that the appellant filed a Bill of entry dated 21.10.2008 for clearance of a consignment of Polyester branded Fabric against DFIA licence dated 23.05.2008. The proper officer resorted to first check and ordered for examination of the consignment and for testing of representative samples drawn from the consignment. The examining officer examined the consignment and found them to be in conformity with the declaration in terms of description, quantity and value. The representative sample was also sent for testing to the Textile Committee. The Textile Committee submitted a report dated 23.10.2008 confirming that the goods were 100% Polyester bonded Fabric. Thereafter, on perusal of the examination report and test report and verification of the declarations made in the Bill of Entry and finding that the goods were covered by the DFIA licence, the proper officer assessed the duty by allowing the benefit of the Notification and debited basic customs duty against the DFIA licence. An out of charge order was also issued. 3. The appellant had also filed three Bills of Entry da....
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.... bills of entry were duly examined under first check by customs officer, samples were drawn and sent for testing by Textile Committee (Ministry of Textiles, Govt. of India), Naraina Industrial State, New Delhi. After duly satisfying themselves from the examination reports and test reports as well, customs officers in their own wisdom assessed the bills of entry extending the benefit of Exemption Notification ibid. Annexed hereto are the copies of examination reports marked as Annexure - 3 (colly). Thus, all the facts as to the nature of goods before passing out of customs charge, were open and known to the Department. Nothing remained out of sight. Hon'ble Supreme Court in the matter of Pushpam Pharmaceuticals Company versus Collector of C. Ex., Bombay [1995 (78) E.L.T. 401 (S.C.)] has held that where facts were known, extended period of five years is not applicable. Also, in the matter of Commissioner of Customs (Export - I) Mumbai versus M/s Morde Foods Pvt. Ltd., Customs Misc. Application No. 86570 of 2018 in Customs Appeal No. 87944 of 2017 etc. Hon'ble Mumbai Bench of Tribunal in its final order A/85343-85373/2020, A/85374/2020 dated 26.02.2020 has held that "we, hold that the....
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....Ltd. versus Commissioner of Customs, Chennai [2015 (318) E.L.T. 607 (S.C.)] etc. In the matter of SRF Ltd. supra Hon'ble Apex Court while allowing the appeal of the party has held that "Denial of exemption was wrong - For additional duty under section 3 of Central Excise Act, 1944 on import, actual manufacture or production of a like article in India was not necessary - For quantification of additional duty, imported article has to be imagined to be manufactured or produced in India and then to see what amount of Excise duty was inevitable thereon". In the conspectus of aforesaid, additional duty of customs was not leviable upon the impugned fabrics". 8. The impugned order deals with this issue of invocation of the extended period of limitation in paragraph 70. The said paragraph is reproduced below:- "70 (a) They submitted that all the goods covered vide instant four bills of entry were duly examined under first check by customs officer, samples were drawn and sent for testing by Textile Committee (Ministry of Textiles, Govt., of India), Naraina Industrial State, New Delhi. After duly satisfying themselves from the examination reports and test reports as well, customs ....
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....ed the invocation of the extended period of limitation. Elaborating this submission, learned counsel also submitted that the impugned order has not appreciated the reply submitted by the appellant that at the time when the four Bills of Entry were filed, the goods were not only examined, but report of the Textile Committee was also sought for and it is on the basis of such examination and the report of the Textile Committee that it was found that the appellant had adhered to the conditions set out in the Notification. Learned counsel, therefore, contends that in such circumstances it cannot be said that the department was not aware about the goods that were imported by the appellant. 10. Shri Mukesh Kumar Shukla, learned authorized representative appearing for the department, however, supported the impugned order and submitted that in the facts and circumstances of the case it cannot be said that the Commissioner was not justified in invoking the extended period of limitation. To support his contention, learned authorized representative referred extensively to paragraph 70 of the impugned order. 11. The submissions advanced by the learned counsel for the appellant and the lea....
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....ersus Collector of Central Excise, Bombay [1995 (78) E.L.T. 401 (S.C.)]. The Supreme Court observed that section 11A(4) empowers the Department to reopen the proceedings if levy has been short levied or not levied within six months from the relevant date but the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. It is in this context that the Supreme Court observed that the act must be deliberate to escape payment of duty. The relevant observations are: "2. xxxxxxxx. The Department invoked extended period of limitation of five years as according to it the duty was short levied due to suppression of the fact that if the turnover was clubbed then it exceeded Rupees Five lakhs. xxxxxxxxxx 4. A perusal of the proviso indicates that it has been used in company of such strong works as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be delib....
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....Court in Uniworth Textiles Ltd. versus Commissioner of Central Excise, Raipur [2013 (288) E.L.T. 161 (S.C.)] and the relevant portion of the judgment is reproduced below: "12. We have heard both sides, Mr. R.P. Batt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of nonpayment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or wilful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability....