KOHLI PRINTOGRAPHICS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) APPELLANT before us got one Cannon Laser Colour Copier with accessories cleared in May, 1991. The goods so imported was a gift to him from his cousin brother, Ravinder Singh Rence. Shri Ravinder Singh Rence sought permission to gift the Copier by filing an Affidavit dated 28th November, 1988. Pursuant thereto CCP dated 28 -12 -1990 was issued, permitting the import of one Canon Laser Colour Copier with accessories. Thereupon the goods were imported as is evidenced by Bill of Entry dated 17 -5 -91. Copier with accessories was valued at Rs. 2,71,580/ -. Duty on that was shown as Rs. 4,07,370/ - plus additional duty of Rs. 1,42,579.50. Thus the total duty came to Rs. 5,49,950/ - as per the Bill of Entry. On the arrival of that consignment Officers of the Customs Deptt. examined the same. On such examination, the Officers made endorsement on the back of the Bill of Entry which reads "Canon Laser Copier 01 Unit with accessories as per invoice and packing list attached and examined..." Thereafter the goods were cleared and were removed from Custom Barriers on 31 -5 -91.

(2.) ON 29 -10 -92, nearly one year and four months after the removal of the goods from the Customs Barrier, Officers of DRI searched the premises of the appellant and seized the Canon Laser Colour Copier. On the basis of the investigation made by those Officers, notice dated 30 -10 -92 was issued requiring the appellant to show cause why action as stated below should not be taken : -

(3.) LD . Counsel representing the appellant stated that the Commissioner was clearly in error in invoking the extended period of limitation in the instant case when there was no concealment, fraud or misrepresentation. We are dealing with this issue in detail. Appellant got the goods by gift from his cousin, one Shri Ravinder Singh Rence. On his request CCP was issued allowing the import of a canon laser colour copier with accessories. As per this sanction, goods were brought to India as is evidenced by bill of entry dated 17 -5 -91. The description of the goods was also identical to those contained in CCP, namely, Canon Laser Colour Copier with accessories. The goods thus imported were examined by the Customs Officers. On examining the goods and on getting satisfied that the goods were confirming to the invoice and packing list they were, allowed to be cleared. No objection was raised by any authority in effecting the clearance. So the clearance must be considered final. Within 6 months therefrom, no action was taken against the appellant. Search of the appellant's premises was held 1 year and 4 months after the said clearance. Show cause notice was issued on 27 -7 -93. It is more than 2 years after the goods were removed from Customs Barrier. This notice could have been issued legally only if the extended period of limitation is available. For the Deptt. to avail the extended period of limitation, they are duty bound to show that something positive was done by the appellant other than mere inaction or failure on his part. They must allege and prove some conscious or overt action on the part of the appellant wherein he withheld valid information misleading or misdirecting the officers of the Excise department. Only on such proof of circumstances can the department initiate action beyond the period of 6 months from the date of clearance of the goods [vide decisions of the Supreme Court in Collector of Central Excise v. Chemphar Drugs and Liniments v. Collector of Central Excise reported in 1989 (40) E.L.T. 276 (S.C.) and Padmini Products v. Collector of Central Excise reported in 1989 (43) E.L.T. 195 (S.C.)]. Further their Lordship in Collector of Central Excise v. H.M.M. Ltd., reported in 1995 (76) E.L.T. 497 took the view that wherever the Deptt. proposes to invoke the proviso, the show cause notice must specifically narrate the various commissions or omissions stated in the proviso to the Section and seek explanation for getting the benefit of the extended period from 6 months to 5 years. Such details are wanting in the notice which gave rise to the impugned order. So relying on the above decisions of the Supreme Court, we are clear in our mind that Deptt. was clearly in error in initiating the impugned proceedings after the expiry of 6 months from the date of clearance of the goods.