CORVINE CHEMICALS AND Vs. CCE

JUDGEMENT

(1.) The only issue arising in this appeal at the instance of the assessee is whether the SCN dt. 22.11.2000 as contemplated under Section 28 of the Customs Act was served on them within a period of six months. The appellants who are manufacturers of chemicals, imported 20,000kgs. of Sodium Nitrite from China. They filed a Bill of Entry on 23.5.2000 claiming exemption of Basic Customs duty benefit in terms of Notification No. 31/97 -Cus. dt. 1.4.97. The Bill of Entry was assessed on 23.5.2000 and the appellant paid Counter -vailing Duty @ 16% on 25.5.2000. On 23.5.2000 Govt. of India issued Notification No. 76/2000 imposing Anti -dumping duty on Sodium Nitrite imported from China. The Dy. Commissioner of Customs issued a SCN dt. 22.11.2000 to the appellant demanding Anti -dumping duty of Rs. 2,53,102 on Sodium Nitrite covered by the above mentioned Bill of Entry. The notice was served on the appellant on 29.11.2000. It is contended on behalf of the appellant that since the notice was served beyond six months, the demand is barred.

(2.) The facts are not in dispute, the only question to be considered is whether the date of the SCN has to be taken into consideration or the date on which it was served, for the purpose of computing the period of six months. The appellant has placed reliance on the decision of this Tribunal in the case of Sewing Systems (P) Ltd. v. Commissioner of Customs, 1992 (62) ELT 725 which was affirmed by the Supreme Court in 1997 (89) ELT A 36 by dismissing the appeal filed by the Revenue. On going through the facts of the case appearing in the decision of this Tribunal, we find that the issue was identical, a notice of demand under Section 28A of the Customs Act, 1962 was issued to the appellant on 11.8.86 demanding duty in respect of consignment clearned against Bill of Entry dt. 13.2.86. The notice was received by the appellant on 18.8.86. Tribunal took the view that going by the wording of Section 28(1) namely "serve notice on the person chargeable with the duty within six months" when the notice was served after expiry of the period of six months, the proceedings initiated under the notice cannot be sustained. Tribunal had placed reliance on the decisions of High Courts of Orissa and Gujarat. In the case of Himson Textile Engg. Indus, Ltd. v. CC (Airport), Mumbai, 2003 (56) RLT 947 we have followed the ratio of the above mentioned decisions and had held that the relevant date is the date of the receipt of the notice and not the date of issue.

(3.) Ld. DR brought to our notice a decision of the Hon'ble Madras High Court in the case of Sha Moolchand Praopchndji Gandhi v. CC (Airport), Chennai, issue a Ld. Judge has taken the view that a SCN issued under Section 110(2) of the Customs Act within a period of six months but served after the period of six months will be valid for continuing the proceedings. The decision of the Hon'ble Supreme Court referred above is not seen placed before the Ld. Judge of the Madras High Court.