ORDER : 1. Delay Condoned. Having regard to a short point involved, we have heard learned counsel for the parties finally at this stage itself. 2. These appeals are directed against the Judgment and Final Order No. A/87852/2018 dated 06.11.2018 in Appeal No. C/1132/2007 and Miscellaneous Order No. M/85887/2019 dated 17.07.2019, in Customs Miscellaneous Application No. 85189/2019, as passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai 1 [Hereinafter referred to as ‘the Tribunal’] whereby the Tribunal partly allowed the appeal against the Order-in-Original passed by the Commissioner of Customs (Import), Mumbai dated 28.09.2007, upholding the recovery of differential duty from the appellant to the tune of Rs. 20,31,302/- on imported hydraulic pumps under Section 28 of the Customs Act, 1962 2 [Hereinafter referred to as ‘the Act of 1962’/’the Act’] and rejected the application for rectification. 3. Shorn of unnecessary details and briefly put, the relevant background aspects of the matter are that M/s David Brown Hydraulic Ltd., U.K. 3 [Hereinafter referred to as ‘the manufacturer’] was in the business of manufacturing hydraulic pumps. The appellant had initially approached them to secure authorized distributorship but, the request was declined because M/s S&H Universal, London 4 [Hereinafter referred to as ‘the supplier’] had already entered into contract for sole distributorship for India and South East Asia. Subsequently, the appellant entered into a sub-dealership arrangement through the supplier. 3.1. The matter in issue pertains to the period 2001-2003, when the appellant cleared shipment of hydraulic pumps manufactured by the said manufacturer and imported from the supplier. 3.2. A Show Cause Notice 5 [‘SCN’ for short] dated 26.09.2006 was issued to the appellant under Section 124 of the Act of 1962 on the allegation that the appellant had under-invoiced the bills of hydraulic pumps imported from the supplier during the years 2001 to 2003. The dispute arose owing to the fact that same goods were imported by the sister concern of the appellant, namely, M/s Shashi Charu Hydraulics Pvt. Ltd. at a higher price, albeit directly from the manufacturer. Therefore, the appellant was called upon to show cause as to why the goods valued at Rs. 76,05,649/- should not be confiscated, differential duty of Rs. 20,31,302/- should not be recovered, and penalty should not be imposed. 3.3. Therefore, the appellant was called upon to show cause as to why the goods valued at Rs. 76,05,649/- should not be confiscated, differential duty of Rs. 20,31,302/- should not be recovered, and penalty should not be imposed. 3.3. The Commissioner of Customs (Import), Mumbai, in his order dated 28.09.2007, held that the appellant had under-invoiced the goods imported from the supplier and rendered itself liable to the consequences. The learned Commissioner, accordingly rejected the declared value of goods; re-determined the assessable value of goods; ordered recovery of differential duty along with interest; ordered confiscation of goods and imposed redemption fine in lieu of confiscation; and also imposed penalty on the appellant and its directors. The relevant parts from the Order-in-Original dated 28.09.2007 could be reproduced as under: “24. In these circumstances, I am of the view that the importer made a vain attempt to justify the under-invoicing of the subject pumps on the basis of list price and distributor's price. In the instant case, the comparison was not in the import price and the list price, but in the two imports of the importer itself, one from the trader/distributor at a lesser price and another from the manufacturer which is at a higher price. Rule 5 of the Customs Valuation Rules clearly state that once the value rejected under 10A of the said rules, valuation can be proceed through Rule 5 to Rule 8. As there was a gross difference in value quoted by the importer and their sister concern (most of the Directors are same) for the said pumps of same manufacture invoice value submitted is in doubt and therefore can be rejected under 10A and after that it can be proceed through Rule 5 to Rule 8. *** *** *** 26. Since the importer has paid Rs. 18,32,368/- towards duty, the differential duty of Rs. 20,31,302/- is recoverable from them under provisions 28 of the Customs Act. Since there is a deliberate misstatement and suppression of facts regarding the actual transaction value of the hydraulic pumps on the part of the importer with the malafide intention to evade the Customs duty legitimately payable by them, the extended period for demand of Show Cause Notice is justified. 27. Since there is a deliberate misstatement and suppression of facts regarding the actual transaction value of the hydraulic pumps on the part of the importer with the malafide intention to evade the Customs duty legitimately payable by them, the extended period for demand of Show Cause Notice is justified. 27. Since the importer had imported the said pumps by under-invoicing them in collusion with M/s. S & H Universal and thus attempted to evade customs duty, the said goods are liable for confiscation under Section 111(m) of the Customs Act, 1962. However, I find that the goods have already been cleared and are no longer available for confiscation. Therefore, the importer is liable to pay a redemption fine in lieu of confiscation under Section 125 of the Customs Act, 1962. It was observed by the Tribunal in case of M/s. Venus Enterprises vs. Commissioner of Customs, Chennai, 2006 (199) ELT 661 (Tri-Chennai) that fine is imposable even if the goods are not available for confiscation. In the above said judgment, it was observed by the Tribunal in Para 5 that “.....we cannot accept the contention of the appellants that no fine can be imposed in respect of goods which are already cleared. Once the goods are held liable for confiscation, fine can be imposed even if the goods are not available......” 28. In the instant case, the action of M/s. Shashi Dhawal Hydraulics Pvt. Ltd. have rendered the subject goods liable for confiscation u/s. 111(m) of the Customs Act, 1962 and hence penalty is imposable on them under Section 112(a) of the Customs Act, 1962. For the act of omission and commission which rendered the goods liable for confiscation Shri. Shashank Patel and Shri. Ketan Patel are also liable for penal action u/s. 112(a) of the Customs Act, 1962. 29. As regards the question of interest under Section 28AB is concerned, I am of the view that, since the demands in the instant case are raised under Section 28 of the Customs Act, 1962, the interest is payable under Section 28AB of the said Act. 30. On the basis of the above findings and decision, I pass the following order ORDER (1) I reject the declared value of the Hydraulic Pumps under Rule 10A of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. 30. On the basis of the above findings and decision, I pass the following order ORDER (1) I reject the declared value of the Hydraulic Pumps under Rule 10A of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. (2) I re-determine the assessable value of goods covered under the B/Es mentioned in Annexure B to the Show Cause Notice as Rs. 76,05,649/- by taking unit price of the hydraulic pump as £ 212 per piece. (3) I order for recovery of differential duty of Rs. 20,31,302/- on said imported Hydraulic Pumps under section 28 of the Customs Act, 1962 alongwith interest under section 28AB of the Customs Act, 1962. (4) I order for confiscation of the impugned Hydraulic Pumps imported by the importer valued at Rs. 76,05,649/- under Section 111(m) of the Customs Act, 1962. (5) I impose redemption fine of Rs. 20,00,000/- (Rupees Twenty lakhs only) on M/s. Shashi Dhawal Hydraulics Pvt. Ltd. in lieu of confiscation under section 125 of the Customs Act, 1962. (6) On M/s. Shashi Dhawal Hydraulics Pvt. Ltd., Shri Shashank Patel, Director & Shri Ketan Haribhai Patel, Director, I impose penalty under Section 112(a) of Customs Act, 1962 as indicated below: (i) M/s. Shashi Dhawal Hydraulics Pvt. Ltd. Rs. 5,00,000/- (Rupees Five lakhs only). (ii) Shri Shashank Patel, Director Rs. 50,000/- (Rupees Fifty thousand only). (iii) Shri Ketan Patel, Director Rs. 50,000/- (Rupees Fifty thousand only).” 4. Being dissatisfied with the aforesaid Order-in- Original dated 28.09.2007, the appellant filed an appeal before the Tribunal challenging the re-determination of assessable value of goods, levy of differential duty, redemption fine in lieu of confiscation, and penalty. The Tribunal, by the impugned order dated 06.11.2018, partly allowed the appeal and though upheld the recovery of differential duty but set aside the redemption fine and penalty. The relevant parts of impugned order dated 06.11.2018 could be usefully reproduced as under: “7. There is no evidence on record that the value declared by the importer is not the price actually paid for the goods. The relevant parts of impugned order dated 06.11.2018 could be usefully reproduced as under: “7. There is no evidence on record that the value declared by the importer is not the price actually paid for the goods. Had the circumstances which prevailed prior to 1998, depicted in the decision of the Hon'ble Supreme Court in re Eicher Tractors Ltd and in accord thereof, be found to have justified the invoking of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 for determination of the assessable value, it would well have been within the scheme of law to confiscate the goods by resort to section 111 (m) of Customs Act, 1962. The fresh determination would have been a consequence of non-compliance with section 14 of Customs Act, 1962 and rule 4 (2) of the said rules arising from deliberate misrepresentation of the transaction value. 8. However, the scheme after incorporation of rule 10A in Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 presents an entirely different scenario. In this scheme, notwithstanding the declared value and the absence of evidence of a different transaction value, the provisions of rule 10A switches the onus to the importer and, in the event of failure to satisfactorily discharge the onus, resort to the sequential application of modes of valuation in the Rules has the approval of law. It would, therefore, appear that there are two discrete processes leading to recovery of differential duty. Recourse to enhancement of value does not, ipso facto, arise from mis-declaration of the value in the bill of entry but from the particular scheme of assessment. Accordingly, invoking of section 111 of Customs Act, 1962 must rest upon evidences other than the mere fact of enhancement of assessable value. The oft-repeated dictum that mens rea is not an essential requirement for proceeding with confiscation, a standard handed down from the ‘pre-rule 10A’ era, does not any longer justify confiscation merely because of enhancement of assessable value. That the sovereign legislature considered it necessary to inserting section 114A in Customs Act, 1962 in 1996 makes it abundantly clear that it was never been intended for section 111 of Customs Act, 1962 to be invoked whenever recovery of duty was ordered. Evidence of mis-declaration should be made available to the noticee before doing so. That the sovereign legislature considered it necessary to inserting section 114A in Customs Act, 1962 in 1996 makes it abundantly clear that it was never been intended for section 111 of Customs Act, 1962 to be invoked whenever recovery of duty was ordered. Evidence of mis-declaration should be made available to the noticee before doing so. Accordingly, in the present circumstances the confiscation under section 111 of Customs Act, 1962 lacks sanction of law. With the setting aside of liability to confiscation, the invoking of section 112 of Customs Act, 1962 also fails. 9. In view of the above, while upholding the recovery of duty under section 28 of Customs Act, 1962 on the impugned goods, the redemption fine and penalties are set aside.” 5. After passing of the order aforesaid, the appellant filed an application for rectification of mistake under Section 129-B(2) of the Act of 1962 while submitting that the extended period of limitation in issuance of SCN in terms of Proviso to Section 28 would not be applicable, given that the Tribunal had set aside confiscation of goods, redemption fine and penalty on the ground that there was no evidence of mis-declaration and hence, confiscation under Section 111 lacked the sanction of law. The Tribunal, while deciding the said application by its order dated 17.07.2019, held that mis-declaration pertained to the entries made at time of import and confiscation was held to be unwarranted following a previous decision but, the elements for invoking the extended period were entirely different and the submissions made during the course of hearing of the main matter did not persuade them that the ingredients were not lacking. The Tribunal also observed that this aspect was sufficiently amplified in its principal order. Hence, the Tribunal rejected the application while observing as under: “5. Redemption fine was set aside by placing reliance upon the decision in Commissioner of Customs (Import), Mumbai vs. Finesse Creation Inc., 2009 (248) ELT 122 (Bom). The mis-declaration, referred to in the eighth paragraph of the said order, pertains to the entries made at the time of import and, therefore, held that confiscation was not warranted. The elements prescribed for invoking the extended period are entirely different and the submissions made on behalf of the appellant during the course of the hearing did not persuade us that ingredients were not lacking. This has been amplified sufficiently in our order. The elements prescribed for invoking the extended period are entirely different and the submissions made on behalf of the appellant during the course of the hearing did not persuade us that ingredients were not lacking. This has been amplified sufficiently in our order. Accordingly, while sustaining the invoking of the extended period for the purpose of confirmation of the duty liability, the penal detriments were set aside and we do not find any error in having done so.” 6. Aggrieved by the aforesaid orders dated 06.11.2018 and 17.07.2019, the appellant has approached this Court. 7. Learned counsel for the appellant has submitted that the extended period of limitation under Section 28 of the Customs Act, 1962 could not be invoked, particularly when the Tribunal has found that there was no mis-declaration under Section 111(m) of the Act. According to the learned counsel, since the SCN dated 26.09.2006 pertained to imports made from November 2001 to April 2003, the proper officer could have raised a demand only within six months from date of import, as per the then applicable Section 28(1) of the Act. However, the extended period of limitation of five years under Proviso to Section 28 was invoked, alleging mis-declaration, misstatement, and suppression of facts on the part of the appellant. The contention of the counsel for the appellant is that since the Tribunal set aside the confiscation of goods under Section 111(m) of the Act as well as the redemption fine and penalty on the ground that there was no misdeclaration, the extended period of limitation would not be applicable. Per contra, learned counsel for the respondent has duly supported the orders impugned and has submitted that the issue as regards non-availability of extended period of time in terms of Proviso to Section 28 (1) was not even raised in the memo of appeal before the Tribunal and in any case, the Tribunal has duly considered and rejected the contention urged in that regard. According to the learned counsel, such a ground remains wholly untenable on the facts and in the circumstances of the present case. 8. According to the learned counsel, such a ground remains wholly untenable on the facts and in the circumstances of the present case. 8. Having heard learned counsel for the parties and having perused the material placed on record, we have formed the opinion that the impugned orders dated 06.11.2018 in Appeal No. C-1132/2007 and dated 17.07.2019 in Customs Miscellaneous Application No. 85189/2019 cannot be sustained, particularly in relation to the question as to whether the extended period of time, in terms of Proviso to Section 28(1) of the Act of 1962, was available in this matter to the Department in issuing SCN dated 26.09.2006. 9. Section 28(1) of the Act of 1962, as applicable in relation to the SCN dated 26.09.2006, had been as under: “28. Notice for payment of duties, interest: (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may: (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year. (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so shortlevied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words “one year” and “six months” the words “five years” were substituted.......” 9.1. Obviously, under the provisions above-quoted, when any duty had not been levied or had been short-levied or erroneously refunded, or when any interest payable had not been paid, part paid or erroneously refunded, the proper officer might have served show cause notice within one year in case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital; and in any other case, within six months from the relevant date. The Proviso allowed an extended period of five years when there was collusion or any wilful mis-statement or suppression of facts. 10. As mentioned earlier, the appellant brought it to the notice of the Tribunal by way of an application under Section 129-B of the Act, that the question in regard to availability of extended period for SCN in terms of Proviso to Section 28(1) of the Act had not been specifically dealt with in the order dated 06.11.2018. However, it was observed in the impugned order dated 17.07.2019 that during the course of hearing, the Tribunal was not persuaded to accept the contentions of the appellant. The Tribunal also stated that the relevant aspect had been sufficiently ‘amplified’ in the principal order dated 06.11.2018. 11. We have gone through the order dated 06.11.2018 and after taking note of the observations therein and the reasons that prevailed with the Tribunal, it is difficult to find if the Tribunal adverted to the question as to whether the necessary elements of the said Proviso to Section 28(1) of the Act were existing or not. Maybe, such a question was not raised by the appellant in the memo of appeal presented before the Tribunal in specific terms but, indisputably, this question remains a jurisdictional question because without existence of the elements specified in the said Proviso to Section 28(1), the show cause notice in question, as issued on 26.09.2006 in relation to the imports made from November, 2001 to April, 2003, could not have been maintained. 12. We need not make any other comments in the matter, but in the totality of circumstances, deem it appropriate that the question of availability of extended period be examined by the Tribunal with reference to the facts of the case and the law applicable. 12. We need not make any other comments in the matter, but in the totality of circumstances, deem it appropriate that the question of availability of extended period be examined by the Tribunal with reference to the facts of the case and the law applicable. We also do not deem it necessary to delve into the findings of the Tribunal with reference to the fact that there was no mis-declaration so as to justify confiscation or redemption fine, because the preliminary issue herein would be as to whether the elements of the Proviso to Section 28 had been existing in the first place, which would be decided independent of the findings/observations of the Tribunal in the second impugned order dated 17.07.2019. 13. In view of the above, the impugned orders are modified to the extent that Appeal No. C/1132/2007 stands restored; and the question as to whether the extended period in terms of the Proviso to Section 28(1) of the Act of 1962 is available in this matter or not is remitted for consideration of the Tribunal in accordance with law. The parties shall stand at notice to appear before the Tribunal on 17.03.2023. 14. These appeals stand allowed to the extent indicated above.