GARWARE PLASTICS AND POLYESTER Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) M /s. Garware Plastics and Polyester Ltd., the appellant imported a consignment of polyester at the port of Bombay After importation, the goods were warehoused in the bonded warehouse of the appellant, at Aurangabad without payment of duty. Subsequently, the appellant filed a bill of entry for clearance of the goods for home -consumption with the benefit of Notifications 36/83 and 121/83 for basic and auxiliary Customs Duty. This bill of entry was presented to the officers at Aurangabad. The Superintendent of Customs, by his letter of 27 -8 -1993 informed the appellant that the total assessable value was not correct as landing charges have not been included. Further, he said, the rate of basic and auxiliary duty shown in the bill of entry as 140% and 35% was not correct and should be 20% and 50%. He, therefore, returned the bill of entry and asked the appellant to present correct bill of entry. The appellant thereupon went in writ petition to the Bombay High Court. The Court by its order dated 31 -8 -1983 ordered clearance of the goods as claimed by the appellant in the bill of entry without presenting a fresh bill of entry with the condition that it should furnish a bank guarantee to the extent of the differential amount. The goods were accordingly cleared. By its order dated 14 -1 -1986, the Court ordered that the balance amount payable by the appellant should be paid in four monthly instalments. By its Order dated 11 -9 -1990, the High Court ordered Superintendent of Central Exise to take decision according to law on the points raised in the writ petition and discharged the rule. Thereafter, the Superintendent issued them a show cause notice on 22 -12 -1990. The notice observed that when the goods were being cleared; the appellant had calculated the Additional Duty of Customs (or countervailing duty as otherwise known) on the assessable value whereas they should have calculated it on the total of assessable value plus Customs Duty. He, therefore, proposed recovery of this differential duty. The appellant again went to the High Court against this Order requesting that the issue of the Additional Duty and landing charges be separated. The High Court extended the time limit for adjudication of the matter but did not otherwise interfere. The Superintendent, in his Order, confirmed differential duty and his Order was upheld by the Collector (Appeals), Pune. The appellant has now come in appeal before us.

(2.) IT is the argument of Shri R.G. Sheth, Advocate for the appellant that the initial objection of the Department was only with regard to rates of basic and auxiliary duty and inclusion of landing charges and calculation of Additional Duty was not one of the issues. He says, therefore, that the notice issued in 1990 is barred by limitation. He disputes the Collector's findings that the show cause notice is not barred by limitation in view of the Explantation to Section 28 of the Act.

(3.) SHRI Sharad Bhansali, SDR says that the letter dated 27 -8 -1983 was only in the nature of communication. The bill of entry, in question, had not been completed and interim stay of the Court was not vacated. The assessement, therefore, must be deemed to be provisional. Therefore, the demand is not barred by limitation.