2017 (8) TMI 433 - HC - Customs

Court quashes Commission order on antidumping duty adjustment, directs reconsideration within 3 months

M/s. C.J. Shah & Co., Apurva M. Shah Versus The Union of India, The Commissioner of Customs (Import), The Settlement Commission, Customs & Central Excise, Addl. Bench Mumbai

The court allowed the writ petition, quashing the impugned order by the Settlement Commission that allowed the adjustment of Rs. 16,99,981 towards ... Maintainability of petition - adjustment towards antidumping duty on the imported goods - time limitation - Section 28 of the Customs Act - Held that: - Admittedly the said amount was adjusted by making voluntary payment along with others by the Petitioner though it was time barred. The law is settled that the Revenue Department/Authorities are not required to issue a demand beyond 5 years period under Section 28 of the Customs Act. By impugned order dated 30.05.2016, the said amount is adjusted towards antidumping duty on goods imported apart from the other order. The Settlement Commissioner, while passing the final order on Petitioner's Application in para 2.2 referring to Chart even noted the four bills of entry beyond the period of 5 years including the issue in question. Therefore, having once noted, there was no question of appropriation of this amount by the SNC. The Petitioner's voluntary deposit, in no way, can bring the said amount within the purview of 5 years period so prescribed. The position of law of Bill of Entry beyond the period of 5 years is clear. Therefore, on this sole ground, we are inclined to consider the case of the Petitioner as contended - The bar of Section 127J needs to be considered from the point of the authority in question. But, in view of above observation on admitted position on record, as case is made out, we are inclined to invoke Article 226 of the Constitution of India, in the present case. The parties cannot be remedyless if case is made out. The Petitioner has no other alternative and efficacious remedy and as the writ petition against such order passed by the Settlement Commissioner in Settlement cases is maintainable - petition maintained. Issues Involved:1. Adjustment of Rs. 16,99,981 towards antidumping duty.2. Imposition of penalty on Petitioner No.2.3. Time-barred demand under Section 28 of the Customs Act.4. Voluntary payment and its implications on the 5-year period.5. Jurisdiction and authority of the Settlement Commission.6. Invocation of Article 226 of the Constitution of India.Detailed Analysis:Adjustment of Rs. 16,99,981 Towards Antidumping Duty:The Petitioners sought to quash and set aside the impugned order dated 30.05.2016 by the Settlement Commission, which allowed the adjustment of Rs. 16,99,981 towards antidumping duty on the imported goods covered under the Bill of Entry dated 3.4.2007. The Petitioners argued that this demand was time-barred. The court noted that the law is settled that the Revenue Department/Authorities are not required to issue a demand beyond the 5-year period under Section 28 of the Customs Act. The Settlement Commission had noted the four bills of entry beyond the period of 5 years, including the issue in question, and therefore, there was no question of appropriation of this amount by the Settlement Commission. The Petitioner's voluntary deposit could not bring the said amount within the purview of the 5-year period prescribed.Imposition of Penalty on Petitioner No.2:The Settlement Commission had imposed a penalty of Rs. 50,000 on Petitioner No.2. The Petitioners had filed an application seeking immunity from penalty and prosecution. The court did not specifically address the penalty issue in detail but focused on the adjustment of the antidumping duty.Time-Barred Demand Under Section 28 of the Customs Act:The court emphasized that the demand for antidumping duty beyond the 5-year period is time-barred under Section 28 of the Customs Act. The Settlement Commission had acknowledged this in its order but still proceeded with the adjustment, which was found to be incorrect by the court.Voluntary Payment and Its Implications on the 5-Year Period:The Petitioners had made a voluntary payment of Rs. 1,98,11,000 without prejudice to their rights and contentions. The court held that the voluntary payment made by the Petitioners could not extend the 5-year period prescribed under Section 28 of the Customs Act. Therefore, the adjustment of Rs. 16,99,981 was not justified.Jurisdiction and Authority of the Settlement Commission:The court examined the jurisdiction and authority of the Settlement Commission under Section 127J of the Customs Act. It was observed that the Settlement Commission had overstepped its authority by adjusting the time-barred amount. The court invoked Article 226 of the Constitution of India to provide relief to the Petitioners as they had no other alternative and efficacious remedy.Invocation of Article 226 of the Constitution of India:The court invoked Article 226 of the Constitution of India to entertain the writ petition against the order passed by the Settlement Commission. The court directed the Respondents to reconsider the Petitioners' application dated 18.07.2016 and the issue of adjustment of Rs. 16,99,981 in accordance with the law within three months.Order:1. The writ petition was allowed.2. The impugned order dated 30.05.2016 was quashed and set aside to the extent prayed.3. The Respondents were directed to decide the issue of adjustment of Rs. 16,99,981 applicable to goods cleared through the Bill dated 3.4.2007 and the application dated 18.07.2016 within three months.4. No costs were imposed.