TaxTMI 
TaxTMI 
2016 (11) TMI 1516
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....ion which was yet to be landed in India. One other crane was seized while it was pending clearance and, having been cleared on provisional assessment, was also subject to the same proceedings as the other cranes already imported. 3. The investigation was commenced on receipt of intelligence that certain individuals were facilitating import of used cranes by crane operating agencies after substantial undervaluation. During investigation, M/s. Goplaji Heavy Lifting paid Rs. 1,00,00,000 by pay orders dated 20th November 2010 and 20th December 2010. The investigation alleged that one Madan Lalwani was the main executor of clearing of cranes and other machinery for clients of M/s. M Dharamdas & Co and that he used to get cranes assessed at value computed on the rate of Rs. 25-28 per kg of lifting capacity which had later increased to Rs. 40 per kg at the time of import. Investigators also identified the illicit channel used to funnel the differential value payable on the undervalued imports. In the proceedings leading to the impugned order-in-original No. CAO/2014/CAC/ CC(I)/AB/GrV, dated 4th September 2014, Commissioner of Customs (Import), New Customs House, Mumbai, invoked Ru....
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....78,77,500 and confirmed the differential duty of Rs. 67,27,903 under Section 28 of Customs Act, 1962 along with interest thereon under the relevant provisions. The bank guarantee of Rs. 28,16,000 was directed to be enforced for recovery of confirmed amounts. The crane was held liable for confiscation under Section 111(m) of Customs Act, 1962 but allowed to be redeemed on payment of fine of Rs. 45,00,000 and penalty of Rs. 67,27,903 imposed on importer under Section 114A of Customs Act, 1962. Penalties of Rs. 17,00,000 each under Section 112 and Section 114A of Customs Act, 1962 and Rs. 5,00,000 each under Section 112(a) and Section 114A of Customs Act, 1962 was imposed on Jitesh Vador and Madan Lalwani respectively besides a further penalty of Rs. 17,00,000 again under Section 114A on the importer. 4. We notice at the outset that there are some anomalies in the impugned order which, once dealt with, need not come in the way of scrutiny of the rest of the order which may, thereafter, be disposed of on merit. The imposition of penalties twice on the importer under Section 114A of Customs Act, 1962 has no rationale. Likewise, the imposition of penalties on the individuals unde....
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....f Section 18 that empowers fiinalization of provisional assessment would be superfluous. To appreciate the distinction, and indeed the rationale for the enactment of both assessment and recovery proceedings as distinct and mutually exclusive provisions, we may gainfully hark back to that point in time when the proviso to Section 28(1) of Customs Act, 1962 was to be invoked only by the Commissioner in the event that short-levy or non-levy arising from suppression, willful mis-statement, collusion etc. and with the period of limitation thereby extended to five years from the relevant date. In such a situation, the normal period was irrelevant. Today, owing to the blurring of hierarchical distinction, the proviso is assumed to be an empowerment to extend the period of demand beyond six months from the relevant date. The legal position has not morphed : the proviso has to be invoked when the specified ingredients are present and not merely when the demand relates to duties assessed more than six months prior to issue of notice. Section 28 has a specific role which does not run parallel to the assessment provisions but is enacted for invoking when assessment has led to short-levy or non....
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....ment from issuing demand notice under Section 28 of Customs Act, 1962, it does not bar the department from accepting the evaded duty deposited by importer voluntarily. Thus, the duty amount and interest deposited voluntarily by the importer is adjustable against the duty and interest recoverable even for the period beyond five years. This proposition has been upheld in the case of India Cements Ltd. v. CCE, Madras [1984 (18) E.L.T. 499 (TRB)]' We do not find ourselves in concurrence with the above proposition as it treads dangerously on the limits erected by the sovereign legislature on the powers of tax collectors under Customs Act, 1962. Under the scheme of Customs Act, 1962, the levy is in rem and every import, distinguished by separate bills of entry, stands on its own for assessment and collection of duty. Duty is paid in compliance with the assessment under Section 17 or 18, as the case may be, and under no other provision. 7. There can be discounting of conscience among the good denizens of a nation and it is well within the realms of rational reality that importers may, of their own volition, come forward to pay duty that was short-levied without waiting for a de....
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....he observations of the majority, recorded separately, would place the facts in true light. "15. The duty demanded was paid by the factory, albeit, as the counsel for India Cements said, under protest. The question thyat, therefore, arises is, should the Tribunal order the Central Excise to return this money as it was recovered under a demand that was time barred. We think not.... The demand was quite right to the extent that the money demanded was due to the Central Excise revenue. The only flaw in the demand is that it was issued outside time. 17. ... It is for the first time that during the course of arguments before us that it came out that the demand made by Central Excise for recovery of duty ... from the appellants was time-barred. Earlier this point was not raised before any other authority. Even in the grounds of appeal this point was not taken. It is nowhere on records that the appellants were forced to pay this duty amount or that any coercive measures were adopted by the department to make the appellants pay that duty amount. What is apparent is, a demand was raised by the Department for payment of the duty amount which the appellants were to pay and in p....
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....ment, serendipitous divination or inspired revelation. Specific Rules have been notified to ensure consistency and objectivity. These Rules are the distillate of experiences and wisdom of, not just a people but, peoples. Non-acquiescence of the propriety and sanctity of the Rules is to betray an ignorance or obduracy that does no credit to the organizational commitment to professionalism. Valiantly attempting to assure that the impugned order is legal and proper, learned Authorized Representative contends that no such error has been committed. He relies upon the decision of the Tribunal in American Eye Light Pvt. Ltd. v. Commissioner of Customs (Import), Mumbai [2013 (290) E.L.T. 720 (Tri.-Mumbai)], Commissioner of Customs, Chennai v. MR Associates [2013 (297) E.L.T. 504 (Mad.)], Amee Electronics & Ors. v. Commissioner of Customs Preventive, Mumbai [2014-TIOL-2833-CESTAT-MUM = 2014 (303) E.L.T. 115 (Tribunal)], Sunrise Ente v. Commissioner of Customs, Mumbai [2011 (274) E.L.T. 200 (Tri.-Mumbai)], Kemtech International Pvt. Ltd. v. Commissioner of Customs, New Delhi [2013 (292) E.L.T. 336 (Tri.-Del.)], Kanungo & Co. v. Commissioner of Customs, Calcutta [1983 (13) E.L.T. 1486 (S.C.)]....
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....ts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases ones should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not all decisive... Precedent should be followed only so far as it marks the path of justice, but you must cut the deadwood and trim off the side branches else you will find yourself lost in the thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.' We now turns to assess the applicability of the decisions cited by learned Authorized Representative which affirm that allowing of cross-examination is an exercise of discretionary authority and that legality of recovery of dues that are barred by limitation of Section 28 of Customs Act, 1962 is not questionable. We have already addressed the second issue. 14. It would appear that Revenue prefers to ignore the test of relevancy of statements in Section 138B(2) of Customs Act, 19....