TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 846
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.....P.No.14365 of 2018 is filed challenging the proceedings dated 22.05.2018 in F.No.S.Misc. 69/2018-Group.6 issued by the second respondent with consequential direction to the second respondent to refund the security deposit of Rs. 84,00,000/-, return the bank guarantees executed by the petitioner for an amount of Rs. 13.77 crores and cancel the bond executed by the petitioner for an amount of Rs. 6,38,05,72,000/- after finalizing the provisional assessments. 2. The case of the petitioner in all these writ petitions is as follows: (i) The petitioner has set up a power plant in Pillaiperumalnallur, Thirukadayur Post, Nagapattinam District. The Government of TamilNadu, on recommendation by the Tamil Nadu Electricity Board, has certified the list of items which were required to set up the power plant and had also recommended concessional rate of duty for the goods to be imported by the petitioner under the project import scheme. The petitioner had registered their project under the Project Import Regulations, 1986, for the purpose of claiming concessional rate of duty on imports of all goods required to set up the power plant. The Assistant Commissioner of Customs (Grade VIII) regist....
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.... notice was issued after 15 years. The said notice is challenged in W.P.No.14365 of 2018. 3. The respondents filed a common counter affidavit in W.P.Nos.6492 and 6493 of 2018 and a separate counter affidavit is filed in W.P.No.14365 of 2018. 4. The case of the respondents in short is as follows: The petitioner has set up a power plant on the recommendation of the Tamilnadu Electricity Board, for which, imported goods were cleared under CTH 9801 under the Project Import Regulations, 1986. After making the plant operational, the petitioner has requested to finalise the provisional assessments made through letters dated 17.06.2003, 10.07.2003, 09.02.2004, 29.11.2003, 17.03.2004 and 27.02.2004. They also attended personal hearing and clarified the queries raised during the personal hearing. They also sent letters dated 15.02.2017, 25.02.2017 and 05.03.2018 requesting to finalise the assessment and to return the cash security deposit and bank guarantees in terms of CBEC instructions and Circulation No.22/2011-Cus dated 04.05.2011. However, in the year 2007, the Directorate of Revenue Intelligence (DRI), vide letter dated 04.10.2007, informed, based on specific information, that the ....
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....ly as in the year 2002 and also submitted all the necessary documents before the respondents for completing the provisional assessment. It is not fair on the part of the respondents in prolonging the matter for more than 16 years without even completing the provisional assessment. He further submitted that the impugned notice, which is nothing but a show cause notice, issued after a period of 16 years is barred by limitation, in view of CBEC instructions in Circular No.22/2011-Cus dated 04.05.2011. Under the said Circular, the respondents are not entitled to insist for renewing the bank guarantees in respect of project imports on completion of a period of six months from the date of submission of necessary documents as proof of utilization/installation of goods for the finalization of the contract. The petitioner is not at fault either by not submitting any documents as required by the respondents or by not participating in the proceedings as and when they are called upon to appear. It is only the respondents who failed to make the provisional assessment in time and dragged on the matter all these years which has resulted in heavy financial constraint to the petitioner Company, si....
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....ed 22.05.2018 is the DRI report, which in clear and categorical terms refer the under-valuation of the goods and if the same is found to be true, the petitioner is liable to pay a sum of Rs. 9.54 cores as differential duty, apart from the applicable interest. It is further contended that the Circular relied on by the petitioner, namely Circular No.22/2011-Cus dated 04.05.2011, cannot be applied to the present case, as the same is applicable only in the normal case and not a case out of the DRI investigation. It is also submitted by the learned counsel that the application of the said Circular would arise only when the proper satisfaction of Officer is arrived based on the document already filed. 7. Heard both sides and perused the materials placed before this Court. 8. It is not in dispute that the two writ petitions filed for mandamus, namely W.P.Nos.6492 and 6493 of 2018, cannot be decided independently without first deciding W.P.No.14563/2018 as the order to be passed in the said writ petition is having a bearing on the prayer sought for in those two writ petitions. Therefore, let me first consider the relief sought for in this Writ Petition No.14563/2018. 9. In Writ Petition....
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....e petitioner only to give their explanation, I do not think that this Court, at this stage, is to interfere with such communication or the proceedings pending before the second respondent, since an order of adjudication is yet to be passed. No doubt, there is some delay on the part of the respondents in completing the provisional assessment, at the same time, when the alleged duty evasion is to the tune of Rs. 9.54 crores and that too, based on the DRI report, this Court is of the view that it is for the petitioner to make their reply to the said letter and explain all their stand in detail so that the second respondent will be in a position to finally make the provisional assessment without loss of any further delay. Needless to say that it is open to the petitioner to raise all the contentions as raised in this writ petition before the second respondent as to how the allegation made in the DRI report are factually incorrect. Certainly, the petitioner is entitled to place all the material facts before the second respondent, who in turn, will have to consider the same and pass a final order. As the jurisdiction of the second respondent in issuing such notice is not questioned and a....
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....delay in making the provisional assessment cannot be construed as fatal to the Revenue. 14. It is true that the petitioner is renewing the bank guarantees for long a number of years by incurring heavy loss. Therefore, the respondents cannot delay the matter further and consequently, they have to take a final decision after hearing the petitioner. As this Court is inclined to direct the second respondent to pass a final order in pursuant to the impugned communication, after hearing the petitioner, the prayer sought for in other two writ petitions viz., W.P.Nos.6492 and 6493 of 2018, cannot be considered, at present. In any event, those prayers were already clubbed with the prayer sought for in W.P.No.14365/2018. 15. Accordingly, all these writ petitions are disposed of in the following terms. (a) The petitioner shall furnish their reply to the impugned proceedings dated 22.05.2018 within a period of two weeks from the date of receipt of a copy of this order. (b) On receipt of such reply, the second respondent shall give an opportunity of personal hearing to the petitioner by fixing a date within a period of two weeks thereafter. (c) On completion of such personal hearing an....