2019 (3) TMI 622 - AT - Customs

Tribunal Overturns Duties Denial, Waits for Jurisdiction Clarity

Dinesh Shah, Atul Maru, Shemaroo Entertainment Pvt Ltd Versus Commissioner of Customs (Import) ACC, Mumbai

The Tribunal set aside the order denying exemption of additional duties based on alleged misdeclaration of software and undervaluation. The issue of ... Jurisdiction of officers of DRI - Exemption of additional duties - Misdeclaration - it is alleged that 'packaged software’ had been wrongly declared as ‘customized software’ - undervaluation - non-inclusion of the royalty paid to the foreign supplier of motion pictures - N/N. 6/2006-CE dated 1st March 2006 - Held that:- The principle of finality of litigation may have the effect of sanctifying illegal proceedings if, ignoring the issue of jurisdiction, merit alone is considered before competence is decided by the Hon’ble Supreme Court. The inequity of a recovery upheld now with jurisdiction being nullified later is not particularly appealing to a judicial institution. Should it be held otherwise, there is no detriment to Revenue as the proceedings would then be reinstated. Considering the criticality of competence to issue show cause notice, the ends of justice will be appropriately met if the impugned order is set aside and the matter remanded back to the adjudicating authority to be decided afresh after the question of jurisdiction of officers of Directorate of Revenue Intelligence to issue notice for recovery of duty is settled - appeal allowed by way of remand. Issues:1. Denial of exemption of additional duties claimed against notification no. 6/2006-CE dated 1st March 2006.2. Allegations of misdeclaration of 'packaged software' as 'customized software' and undervaluation by non-inclusion of royalty paid.3. Authority of Additional Director General, Directorate of Revenue Intelligence to issue show cause notice.4. Constitutionality of retrospective validation of competence to issue notice.5. Jurisdictional conflicts among different High Courts regarding competence to issue show cause notices.6. Doctrine of merger and finality of litigation in challenging show cause notices.7. Competence of officers of Directorate of Revenue Intelligence to issue notice for recovery of duty.Analysis:1. The appeal challenged an order denying exemption of additional duties against a specific notification. The denial was based on alleged misdeclaration of software and undervaluation by not including royalty payments. The appellant faced a demand for differential duty and enhanced assessable value, leading to consequential detriments.2. The show cause notice was issued by an officer from Directorate of Revenue Intelligence, raising concerns about the authority's competence. Both parties acknowledged a pending matter before the Supreme Court, suggesting a delay in deciding until the jurisdiction issue is resolved.3. The constitutionality of retrospective validation to issue notices was challenged in various High Courts, resulting in diverging decisions. The Tribunal's Hyderabad bench opted not to dispose of matters with such challenges until the competence issue was clarified.4. Jurisdictional conflicts among High Courts were noted, with the High Court of Bombay upholding the power to issue notices. However, challenges to this competence were admitted in subsequent cases, aligning with the Tribunal's remand orders pending clarification on jurisdiction.5. The doctrine of merger was discussed, emphasizing that challenges to show cause notices after final adjudication may not be maintainable. The principle of finality in litigation was highlighted to prevent reopening settled issues repeatedly.6. Considering the importance of competence in issuing show cause notices, the Tribunal set aside the impugned order and remanded the matter for fresh adjudication once the question of jurisdiction was resolved. This approach aimed to ensure justice and clarity in the proceedings related to the recovery of duty.