The main legal point established is that the extended period of limitation under Section 28 of the Customs Act is not attracted unless there is suppression of facts or misstatement. Additionally, the benefit of doubt must go in favor of the importer when the reports are inconclusive.

ORDER :

CIVIL APPEAL NO. 5720 OF 2008

The challenge in the appeal is against the Order dated 04.04.2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bangalore (hereinafter referred to as the 'Tribunal') disposing of nine appeals filed by the respondents herein viz., Appeal Nos. C/281/02, C/282/02, C/283/02, C/275/04, C/273/04, C/274/04, C/493/04, C/494/04 and C/495/04. Appeal Nos. C/275/04, C/273/04, C/274/04, C/493/04, C/494/04 and C/495/04 have been allowed on the ground that the impugned show cause notice issued under Section 28 of the Customs Act (hereinafter referred to as 'Act') was time barred and no case for invocation of extended period of limitation provided by Section 28 of the Act was made out. The remaining three appeals i.e., Appeal Nos. C/281/02, C/282/02 and C/283/02 have been allowed on merits interfering with the order dated 21.08.2002 passed by the Adjudicating Authority viz., Commissioner of Customs, Hyderabad, holding the imported goods to be hazardous waste and not copper concentrate and, therefore, liable for confiscation, destruction and for imposition of penalty.

2. The brief facts that will be required to be noticed for the purposes of present appeal are as follows:

3. In the years 2000 to November, 2001, 18 different consignments of Copper Concentrate were imported by the respondent-M/s. Magus Metals (P) Ltd., which were duly cleared on being certified by the Chemical Examiner, Chennai, certifying the same to be Copper Concentrate. Two more consignments were imported on 24.12.2001 and 24.01.2002. It appears that three samples from the said consignments were taken by the Revenue and the respondent claims that while one sample was handed over to it, the remaining two were sent by the Revenue for analysis to Environment Protection Training Research Institute (hereinafter referred to as 'EPTRI') and National Mineral Development Corporation (hereinafter referred to as 'NMDC'). It appears that the reports of the aforesaid two bodies so far as the samples sent by the Revenue is concerned were adverse to the respondent-importer whereas the respondent claims that the sample received by it was also sent for analysis to the EPTRI and the opinion rendered was in its favour. Thereafter, on the basis of the aforesaid reports, Show Cause Notice dated 16.04.2002 was issued proposing confiscation and imposition of penalty under the Act. The aforesaid Show Cause Notice was adjudicated by the Commissioner of Customs on 21.08.2002 holding the goods to be hazardous waste and, therefore, liable for confiscation, penalty, etc. The aforesaid order dated 21.08.2002 was assailed in appeal before the learned Tribunal.

4. It appears that on 18.03.2003, further Show Cause Notices were issued by the DRI, Chennai, and also by DRI, Hyderabad, in respect of the earlier 18 consignments which were cleared by the respondent-importer. The said Show Cause Notices were based on the subsequent report of the EPTRI and NMDC in respect of the samples taken from consignment dated 24.12.2001 and 24.01.2002. It appears that both the Authorities, adjudicating the Show Cause Notices confirmed the demand by order dated 29.03.2004 (Commissioner of Customs, Hyderabad) and 23.09.2004 (Commissioner of Customs, Chennai). Both the orders were assailed by the respondent-importer by filing appeals before the learned Tribunal. It is in the aforesaid facts that the learned Tribunal was in seisin of the nine appeals referred to above.

5. We have heard learned counsels for the parties. We have considered the impugned order as well as the orders of the Adjudicating Authority and the reports submitted by EPTRI and NMDC in respect of the samples sent by the Revenue as also the report submitted by EPTRI in respect of the sample sent by the importer-respondent.

6. Insofar as the order of the learned Tribunal holding the Show Cause Notice dated 18.03.2003 to be time barred in the six appeals referred to above, we do not find any er