9.2 In terms of the legal provisions governing recovery of duties not levied or short levied or short paid, such duty can be recovered by issue of SCN within 5 years from the relevant date under Section 28 ibid. On perusal of the case records, it transpires that in respect of 32 consignments of imported second hand cranes by appellant M/s Govindji Gopalji & Sons and 1 consignment of imported second hand crane by appellant Shri Dinesh Sharma, were covered by various B/Es of dates 22.05.2006, 02.07.2006, 05.10.2006, 11.10.2006, 26.11.2006, 27.11.2006, 04.12.2006, 27.12.2006, 01.01.2007, 19.02.2007, 12.03.2007 and 31.01.2006. Since these imported consignments on which the appellants had paid customs duty at the time of its import before clearance from customs control on different dates, goes/dates back beyond the 5 years’ time limit from the date of issue of SCN dated 04.04.2013, no duty demand can legally sustain in terms of Section 28 of the Act of 1962. In the SCN it has been stated that “ differential duty of (32+1 = 33 cranes) being beyond 5 years, is beyond time period under Section 28 of the Customs Act, 1962. However, differential duty having been deposited voluntarily, the same has been adjusted against duty evaded .” However, in the impugned order, the learned adjudicating authority did not confirm the duty demand in respect of these imports, which are beyond the statutory time limit of 5 years for issue of SCN in recovering the short levy and also did not appropriate the voluntary payments against such duty. Therefore, in our considered opinion re-determination/enhancement of the assessable value for 32 consignments of used cranes under Rule 8 ibid; and one crane sold on High Sea Sales (HSS) basis under Rule 4 ibid, for demanding duty is not proper and cannot sustain legal scrutiny in terms of Sections 14 and 28 of the Customs Act, 1962 read with Rules of 2007. Therefore, the appeal filed by Revenue for setting aside the voluntary deposit made by the appellants which was appropriated by the learned adjudicating authority towards the confirmation of adjudged demands within 5 years period, in order to enable such payment of duty for its appropriation or recovery of duty on such aforesaid consignments beyond 5 years period, is liable to be dismissed. Thus, the appeals filed by Revenue are liable to be rejected.
