TaxTMI 
TaxTMI 
2016 (7) TMI 1149
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....l Commissioner of Customs, Coimbatore in which a penalty of Rs. 1,74,940/- has been imposed on the petitioner under Section 112A(ii) of the Customs Act and a penalty of Rs. 5,50,10,690/-, under Section 104AA of the Customs Act. The allegations, which had led to the passing of the impugned order, are that M/s.Visal Lubetech Corporation, a proprietary concern owned by one R.Parivallal at Bangalore, filed two bills of entries dated 21.12.2013 and 20.01.2014 at the Inland Container Depot, Irugur, through their Customs House Agent M/s.Nippon Express (India) Pvt., Ltd., for import of certain goods declared as Carbon Black Feed Stock (CBFS), which was stuffed in four and six containers respectively. The importer claimed classification of the goods under Customs Tariff No.28030090 attracting rate of duty of 22.583% and self assessed the amount of duty as Rs. 5,09,161/- and Rs. 9,20,551/- respectively with aggregate amount of duty in respect of both the bills of entry as Rs. 14,29,712/-. In order to verify the correctness of the self assessment and in accordance with the Alert Circular No.12/2013, issued by the Directorate of Revenue Intelligence, samples were drawn on 30.12.2013 and it was....
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....porter that the import cargo was of the inferior quality, therefore, he had abetted the commission of offence punishable with penalty under Sections 112, 114AA of the Customs Act and opportunity was granted to the petitioner to submit his reply. The petitioner submitted a letter to the respondent, dated 23.10.2015, enclosing a letter addressed to the Chief Commissioner, Coimbatore, dated 22.09.2015, requesting the same to be treated as an interim reply. The reply given by the petitioner has been referred to in paragraph 35 of the impugned order. Essentially, the petitioner states that he was not at fault, statements recorded from the him were under threat and coercion and second statement was recorded from him cannot be relied on. Subsequently, personal hearing was granted in which the petitioner appeared through a consultant and made written submission, which has been referred to in the impugned order from paragraph 39 onwards. In paragraphs 65 and 66 of the impugned order, the respondent, while adjudicating the show cause notice, has considered the petitioner's submissions and recorded a finding that defence raised by the petitioner lacks credibility and the petitioner was he....
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....ournment to enable to make further submissions. Accordingly, the matter was adjourned to 19.07.2016. 5. When the matter was heard on 19.07.2016, the learned Senior counsel appearing for the petitioner elaborately reiterated the factual matrix of the matter. A legal submission was put forth by referring to Section 155 of the Customs Act and it submitted that the said provision contains two sub-sections and sub-section (2) is an independent provision which stipulates a period of limitation for initiating proceedings against Central Government or any Officer of the Government or a local authority for any thing purporting to be done in pursuance of the Act without giving the Central Government or such officer a month's previous notice in writing of the intended proceedings and of the cause thereof or after expiration of three months from the accrual of such cause. It is submitted that the first set of samples were drawn on 30.12.2013 and the second on 23.01.2014 and the proceedings were initiated well beyond the period of three months as show cause notice was issued on 04.12.2014. Therefore, it is submitted that the entire proceedings are barred by limitation. In support of his co....
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....ption is that they were sealed immediately on drawing and this could be rebuttable only based on evidence. It is further submitted that the statements recorded from the petitioner under Section 108 of the Customs Act, does not require any corroboration and it is admissible in evidence and belated retraction by the petitioner is an after thought. The allegation against the petitioner is the substitution of samples which was done with malafide intentions. Further, by referring to the observations made in paragraph 65 of the impugned order, it is pointed out that all the persons have deposed that the samples had physically passed through the petitioner supporting the theory of substitution. It is submitted that the penalty under Section 112 is for abetment of the offence and the penalty under Section 104AA is for causing to be made, signed or used any declaration or document, which is false or incorrect in any material particular as provided under the said section It is further submitted that the substitution of samples were not done in good faith and hence, not covered under Section 155 of the Customs Act and the said Section provides immunity to Central Government or officers agains....
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....ferred therein, it was pointed out that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative Writ, that it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwise. Further, it was pointed out that the Hon'ble Supreme Court in the case of Titaghur Paper Mills Company Ltd. vs. State of Orissa reported in AIR 1983 SC 603, held that the appellant therein had pleaded that there was violation of natural justice and the impugned order was without jurisdiction, yet the Supreme Court held that the petitioner should avail his alternate remedy of appeal. 13. The issue raised by the petitioner by referring to Section 155(2) of the Customs Act is a matter pertaining to limitation. From the material papers placed before this Court in the form of typed set of papers, it is seen that the petitioner has not raised such an issue at the time of submitting his letter dated 23.10.2015, where he requested his letter addressed to the Chief Commissioner, ....