Fibro Plast Corporation Vs. Commissioner of Cus.

.....of notification 203/92. subsequently the department came to the conclusion that the licence was forged. an appeal was filed to the commissioner (appeals) seeking to set aside the order in assessment passed in the bill of entry for the clearance of the goods and "to levy appropriate duties of customs under section 12 of the act". in the order passed in appeal the commissioner (appeals) has set aside the order of assessment and said "the goods which were allowed clearance without charging any are liable to pay customs duty as applicable".2. the contention of the counsel for the appellant is that it is now settled law that duty which are short levied or not levied cannot be recovered without issue of a show-cause notice under section 28 of the act and merely setting aside the order of the assessment does not result in automatic liability to duty. he cites the supreme court's judgment in cce v. re-rolling mills - 1997 (94) e.l.t. 8 and contends that although it relates to duty under the central excises & salt act, the same principles would apply for recovery of duty under customs act.3. the departmental representative emphasises that the licence was forged and the goods could not have been permitted to clear without payment of duty.4. the provisions relating to recovery of duty in the customs and central excise acts are similar and the principles contained in the judgment of the supreme court cited by the appellant would also apply to recovery of customs duty.5. therefore, while not interfering with the finding of commissioner (appeals) that the order of assessment was not valid on his finding that the licence was forged, which issue was not before us, we set aside that portion of the order holding that the goods are liable to customs duty as applicable. we make it clear that the department is at liberty to take steps to collect duty if it is shown to be leviable, according to law.