AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1305
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.... Navneet Singh as proprietor are engaged in import of air conditioners of general brand, LED panels, parts of LED TVs, packing material and other electronic goods. Department received an information about the said importer importing split air conditioners of 1.5 tons by mis-declaring the same as that of 1 ton cooling capacity. The Department accordingly conducted examination of the goods covered by bill of entry No. 2747268 dated 29.09.2015 and it was discovered that even weight and dimensions of air conditioners had discrepancies. An investigation in the premises of M/s Jagjeet Impex was also conducted and the records thereof were found in possession of Shri Rohit Sakhuja, the co-noticee. In fact, the address of M/s Jagjeet Impex was found....
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....of the Customs Act submitting that the provision permits conclusion of the proceedings under the Act where the duty alongwith interest and the penalty as mentioned therein is deposited within 30 days of issuance of Show Cause Notice and no differential has been subsequently demanded by the Department. It is also impressed upon that the payment in compliance of said Section was made by the appellant even prior the issuance of Show Cause Notice, still the Show Cause Notice was served and has been adjudicated against the appellant. The findings of the authorities below are therefore alleged to be erroneous while denying the benefit of this provision to the appellant. Orders are accordingly prayed to be set aside. Ld. Counsel has relied upon th....
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....hich came into effect vide Section 22 of the Taxation Laws (Amendment Act, 2006) so as to provide for deemed conclusion of the proceedings. The provision reads as follows: "5) Where any duty has not been levied or has been short levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or the employee of the importer or the exporter, to whom a notice has been served under sub-section (4) by the proper officer, such person may pay the duty in full or in part, as may be accepted by him, and the interest payable thereon under Section 28AA and the penalty equal....
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....e assesse satisfies the condition of the said Section. The language makes it clear that the provisions provide for deemed conclusion of the proceedings against the assesses if the payment as regard the duty, interest and 15% penalty thereof stands made by the assesse within a period of 30 days of the receipt of Show Cause Notice. It is further seen that the provision is applicable even in the cases of demand having been arisen on account of collusion, wilful mis-statement or suppression i.e. even in respect of illegal activity of the assesse, if the same stands accepted by him and the respective duty alongwith proportionate interest and the required penalty stands paid. 7. Now coming to the fact of the present case, the appellant herein ....
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....shall be computed from the date of receipt of said information. The Department has miserably failed to follow the prescribed procedure. 8. No doubt Sections 28(5) and 28(6) are applicable without prejudice to the provisions of Sections 135, 135A and 140 of the Customs Act but perusal of Show Cause Notice makes it clear that none of these provisions have been invoked at the time of issuing Show Cause Notice. It has already been observed that in fact the Show Cause Notice, in the present case, was not required to be issued. Though the Department has impressed upon about the present case to be a case of confiscation on account of mis-declaration punishable under Section 135 of the Act and has also impressed upon Circular No. 11/2016 excludi....
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....s the co-noticee, Mr. Rohit Sakhuja is concerned, I am of the opinion that Circular is not applicable upon him as well for the simple reason that the Circular has tried to widen the scope of Section 28(5) and 28(6) of the Act. It is the settled provision that Circulars being mere clarificatory in nature cannot supersede the legislature. It is also settled principle of law as was held by Hon'ble Apex Court in Babu Vs. Bar Council Kerala AIR 1999 (S.C.) 128 that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. In another case of Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra 1989 (44) E.L.T. 613, the Hon'ble Apex Court has observed that a taxing statute must be i....