2017 (7) TMI 317 - AT - Customs

Challenges to Customs Act penalties raise procedural and fairness concerns

Vipin Mahajan Versus Additional Director General

The case involved challenges to an adjudication order based on the absence of imposable penalties and a time-barred notice. Issues included reliance on ... Jurisdiction - power to adjudicate the case - Held that: in the event the Tribunal after examination come to the conclusion that the matter should be remanded, then there is no need to argue on the merits - appeal allowed by way of remand. Issues:1. Challenge to adjudication order on grounds of no penalty imposable and time-barred notice.2. Reliance on test reports supplied post-adjudication.3. Allegation of improper adjudication and reopening of provisional assessment.4. Quality and value declaration of imported coal.5. Violation of law due to reliance on unauthenticated documents.6. Allegation of violation of natural justice in adjudication process.7. Correctness of value declaration and duty payment.8. Request for re-adjudication by a higher authority.9. Imposition of penalty without meeting requirements of Customs Act.10. Delegation of adjudication power to a junior officer challenged in court.Analysis:1. The learned Senior Counsel argued that the adjudication order could be challenged due to the absence of penalty imposable under section 28 of the Customs Act, 1962. The time-barred notice issued against a bill of entry filed in 2013 was also highlighted, questioning the validity of the order passed in 2016. It was contended that the duty payment was not short, thus rendering the penalty imposition baseless.2. The Senior Counsel further contended that test reports relied upon by the Revenue were provided post-adjudication, raising concerns about the procedural fairness. The import of coal from Indonesia, along with the related documentation, was discussed to support the argument against the imposition of penalties under section 28.3. The Counsel emphasized that the Customs Authority should have exercised supervisory powers under Section 159B of the Customs Act instead of reopening the provisional assessment in 2014. The legality of readjudicating cases not permitted under section 28 was questioned, highlighting procedural irregularities in the adjudication process.4. Regarding the quality and value declaration of the imported coal, it was argued that the coal supplied for power generation must have a high calorific value. The correctness of the declared value based on the goods' quality was asserted, citing the Customs Officer's limited authority to question the goods' quality without proper legal grounds.5. The Counsel referenced Section 139 of the Customs Act, which provides for the presumption of documents' authenticity. Any reliance on unauthenticated documents was deemed a violation of the law, citing relevant legal precedents to support the argument.6. Allegations of violating natural justice in the adjudication process were raised, pointing out discrepancies in the documents relied upon by the Adjudicating Authority. The lack of opportunity to defend against the reports used against the appellant was highlighted as a breach of natural justice principles.7. The correctness of the value declaration and duty payment for the imported coal was reiterated, emphasizing that there was no shortfall in duty payment and invoking section 28 was unnecessary. Procedural violations in the adjudication process were pointed out based on the documents presented in the case.8. A request was made for re-adjudication by a higher authority to ensure an objective approach to the law, highlighting concerns about the fairness and legality of the initial adjudication process.9. The imposition of penalties without meeting the requirements of the Customs Act, specifically section 28, was strongly contested, arguing that penalty imposition should be justified by the presence of statutory elements.10. The delegation of adjudication power to a junior officer was challenged in court, raising concerns about the legality and procedural fairness of such delegation, which was subject to a previous court ruling directing the matter to be raised before the Tribunal for further consideration.