ATUL LIMITED Vs. COMMISSIONER OF CUSTOMS (ACC), MUMBAI

JUDGEMENT

(1.) IN terms of licence granted by DGTD and Controller of Imports and Exports for initial setting up/modernization and substantial expansion of plant, the appellants imported components for monopolar membrane electrolyses under the cover of exemption Notification No. 63/87, dt. 1 -3 -87 and No. 155/86, dt. 1 -3 -86 and filed bill of entry for the same. The said claim of exemption by the appellant was allowed by the Customs authority and the goods were cleared thereafter. Subsequently, as a result of audit objection, a less charge demand memo was issued to the appellant on 9 -11 -93. Vide his office memo dt. 25 -4 -95, Deputy Commissioner confirmed duty of Rs. 77,54,581/ - under Section 28 of Customs Act, 1962. On an appeal against the said office memo, the Commissioner (Appeals) set aside the same and remanded the matter to the Deputy Commissioner to pass fresh order, after dealing with the appellants contention that show cause notice dt. 9 -11 -93 was barred by limitation. The appellants did not contest the demand on merit.

(2.) THE impugned order stand passed by Deputy Commissioner in de novo proceedings, wherein by taking note of various facts, he has held the notice dt. 9 -11 -93 to be within the period of limitation, which expired on 14 -11 -99. The appeal against the above order of Deputy Commissioner did not succeed before Commissioner (Appeals). Hence, the present appeal.

(3.) SHRI Lalit Patni, learned General Manager appearing for the appellant clarified that the demand is being contested by them only on the point of limitation. He submits that the last date of limitation expired on 14 -11 -93. The demand notice, though issued on 9 -11 -93 was never received by them till 14 -11 -93. The Commissioner (Appeals) in his remand proceeding had directed the lower authority to produce evidence on record to show that the same was received by the appellant within limitation period. In de novo proceedings, the Deputy Commissioner has not referred to any evidence showing the service of such show cause notice to the appellant on or before 14 -11 -93. By drawing our attention to a certificate issued by the Postal authorities on 16 -8 -99, the learned representative submits that normally it takes 6 -7 days time for a registered letter to reach Atul from Andheri. As such, submits the learned representative that notice sent on 9 -11 -93 could not have reached on or before 14 -11 -93. He also drew our attention to the records maintained in their office showing receipt of the various letters. By referring to the same, learned representative contended that as the show cause does not figure in the receipt record maintained by them till 17 -11 -93, the same clearly show that the notice was not received by them till 14 -11 -93 and as such the same is barred by limitation.