(a) Customs Act (IV of 1969)---

------Ss. 32, 80 & 81---Show-cause notice for short levy of duty after period of six months, issuance of---Validity---Where original duty was provisionally assessed under S.81 of the Act, then limitation would start running from date of final adjustment in pursuance of final assessment under S.80 for purpose of S.32 of the Act.

(b) Customs Act (IV of 1969)----

----Ss. 32, 80 & 81---Show-cause notice for alleged short levy after six months of levy of original duty, issuance of---Validity---Burden was on Department to show that original assessment was provisional, and not final---Since Department had failed to discharge such burden assessee was entitled to benefit of doubt---Such demand/show-cause notice was barred by limitation---High Court allowed appeals with direction to refund forthwith to assessees the amount recovered from them in pursuance of time-barred demand/show-cause notice.

Abul Khair for Appellants.

Raja M. Iqbal and Khursheed A. Hashmi, D.-A.G. for Respondents.

Date of hearing: 13th November, 2002.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---In all the above appeals arising out of the consolidated order, dated 29-5-1998 by the learned Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench, in Custom Appeals Nos. K-124 of 1998, 125 of 1998 and 126 of 1998 a common question of fact and law is involved, and therefore, all the three appeals have been heard together and are disposed of by this single consolidated order.

The sole contention raised by the learned counsel for the appellants is that the show-cause notice issued by the respondent No.4 are barred by time and consequently the demand created in pursuance of the demand/show-cause notice and all subsequent orders are liable to be quashed.

It is admitted position that the show-cause notices were issued after more than 6 months. of the levy of custom duty. The case of the Customs Department is that the original duty was provisionally assessed under section 81 and therefore, the period of limitation shall start running from the date of final adjustment in pursuance of final assessment under section 80 of the Customs Act, 1969, for the purpose of section 32 of the Customs Act.

So far, the proposition of law is concerned, there can be no cavil to it. However, the contention is vehemently denied by the learned counsel for the appellant. Mr. Abul Khair, learned counsel for the appellant has submitted that the contention was specifically raised before the Customs, Excise and Sales Tax Appellate Tribunal (hereinafter referred to as the Tribunal), but in spite of recording the contention in the impugned order no finding was given on the point of limitation. The learned counsel for the Customs Department was directed to show from the record whether the original assessment made was final assessment under section 80 or a provisional assessment under section 81 of the Customs Act, 1969. However, the learned counsel for the respondent was not able to produce any record in respect of the contention that the original assessment was a provisional assessment under section 81. He stated that the matter pertains to the year 1997 and the record is not traceable.

As the department has taken plea that the original assessment was provisional under section 81 of the Customs Act, therefore, the burden is on the department to show that the original assessment was provisional and not final. Since the department has failed to discharge the burden therefore, the appellant/assessee is entitled to the benefit of doubt.

In the absence of material showing that the original assessment was provisional assessment we have no option but to accept the contention that the original assessment was made under section 80 of the Customs Act, 1969 ,on the basis of CRF issued by the PSI Company and consequently the demand/show-cause notice issued for alleged short levy beyond the period of six months was barred by limitation. Consequently all the orders made on the basis of time-barred demand/show-cause notice are liable to be quashed which we do, accordingly.

All the appeals are allowed with the direction that the amount recovered in pursuance of the time-barred demand/show-cause notice and the orders passed in pursuance thereof may be refunded-forthwith to the appellants.

After hearing learned Advocates for the parties, the appeals were allowed by a short order on 13-11-2002. These are the detailed reasons in support thereof.

S.A.K./P-65/K??????????????????????????????????????????????????????????????????????????????????????????????? Appeals allowed.