Customs, Excise and Gold Tribunal - Mumbai
P. Dalal And Co. Pvt. Ltd. vs Cc (A) Airport on 16 February, 1999
Equivalent citations: 1999(85)ECR249(TRI.-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. This is an appeal filed by the appellants against the decision dated 14.7.1998 made by the Commissioner of Customs (Appeals), Airport, Mumbai made in Order-in-Appeal no. 64/98-AP(TE-AIR) V whereunder he dismissed the appeal of the appellants. In the appeal, the appellants contended that the Show-cause notice dated 16.8.1994 was barred by limitation as the duty was paid on 28.2.1994. The Collector had rejected the said contentions.
2. The appellants imported electrical measuring instrument some time in April 1992 and filed two Bills of Entry whose numbers were 464 dated 2.4.1992 and 8274 dated 24.4.1992 for home consumption. The appellants claimed clearance under Tariff heading no. 9031 and claimed exemption under notifications 109/92 and 121/92. The goods were examined, and assessed to duty and allowed clearance on 24.2.1994. A letter dated 3.8.1994 was issued to the appellant informing the appellant that there was a short levy of 301790 in respect of both the Bills of entry as per provisions of notification 121/92. Exemption benefit under the said notification 121/92 could be extended to the appellant who availed exemption under 109/92. This type of notice was also issued to appellants in respect of goods cleared in Bill of entry 8204 dated 24.4.1992. The applicant replied to the department that they had correctly described the description of the goods and demands were also justified. A show cause notice dated 16.8.1994 was given calling upon the appellant to pay the differential duty wrongly refunded. A personal hearing was given by the Assistant Commissioner dated 14.8.1995. After hearirfg the personal hearing on 21.8.1995 a further personal hearing was given on 2.8.1997. Again the Assistant Commissioner passed the order in original dated 11.8.1997 whereunder he rejected the contention raised by the appellant. When the notices were for Rs. 1,96,713/- + 1,04,977/- amounting to Rs. 3,01,690/-, an order was made for Rs. 99,873/-. In fact in 1994 audit pointed out that the goods have been rightly covered by notification 109/92 and the basic duty was leviable on 40% and the short levy was qualified at 99,873/-. This is referred to in the AC's order. Against that an appeal was filed before the Commissioner of Customs (Appeals) who by the impugned order after going through the facts of the case rejected the contention of the appellant. Hence the present appeal.
3. Shri N.W. Alimchandani, Consultant appeared on behalf of the appellant and Shri C.P. Rao, SDR appeared on behalf of the department. The appeal was taken up for hearing as the question involved was lying in a narrow compass after waiving pre-deposit with the consent of both sides.
4. Shri Alimchandani mainly contended that demands made by the impugned orders were never communicated to his clients. No speaking order has been made by the authorities regarding the application of notification 111/92. The demand could not have been reduced to Rs. 99,873/- without personally hearing the appellant whereas the notices have been issued for Rs. 3,01,690/-. The notification proceedings are vitiated in law inasmuch as no speaking order has been given. He also stated that the AC heard him on 21.8.1995 and again to his surprise, again he was asked to explain the case on 11.8.1997. It is argued that this vitiated the entire proceedings. He also stated that whenever the demand is made at a specific amount, there must be a specific show cause notice. Mr. Alimchandani also stated the demands are barred by limitation. Learned SDR adopted the reasoning of the lower authorities.
5. We have considered the submissions. The main contention of the Consultant was regarding the failure of natural justice. The notice have been given admittedly for a larger sum namely Rs. 3,01,690/-. In the impugned order of the AC the demand was made for 99,873/-. It is true that audit department has referred to a lesser amount namely 99,813/- as is referred to in the third paragraph of the order in original. The grounds taken by Mr. Alimchandani have to be rejected. It is not the case that no notice has been given for any amount. When a notice has been given for a larger amount and the adjudication amount is made for lesser amount, nobody can have any grouse. Smaller is included in the greater. If there is no notice given then one can contend that there is a failure of natural justice. Basically natural justice has not to be viewed in a straight jacket but to be viewed according to case to case and circumstance to circumstance.
6. Again it is to be stated no failure in natural justice has occurred in this case. No doubt one officer heard in 1995 and another officer had passed the order in original but after hearing the appellant. Therefore there is no failure of natural justice in this case.
7. As far the limitation point is concerned duty was paid on 23.2.1994; demand was received on 16.8.1994 within six months of payment of duty. We do not find any case has been made out for limitation. The contention that the case has been barred by limitation has to be rejected as the notice was given within six months of payment of duty. No prejudice can be caused to the appellant.
8. We have also seen the merits of the case. We do not think there is any merit in the appellant's case. Hence we dismissd the appeal.