2019 (1) TMI 622

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.... 1.5 ton cooling capacity by mis-declaring the same as of 1.0 Ton cooling capacity to undervalue these goods and evade Customs Duty. Acting on the said information the DRI vide their letter DRI/LDZU/856/(ENQ-33) (INT-16)2015/2131 dated 03.10.2015 (RUD-1) requested the Commissioner of Customs (Imports), ICD, Tughlaqabad, New Delhi that the import consignment covered under Bill of Entry No. 2748490 dated 29.09.2015 (RUD-2) of M/s. Krishna Capital, pending for customs clearance be examined in the presence of the DRI. In view of the discrepancies observed in the weight, dimensions and declaration regarding refrigerant, the 240 pieces of Window Air conditioners were detained on 08.10.2015 vide Panchnama dated 08.10.2015 for further verification. The residence cum office premises in possession of Sh. Rohit Sakhuja were searched. Records pertaining to M/s Krishna Capital were found available in the possession of Sh. Rohit Sakhuja and staff working under him which were resumed under Panchnama dated 13.10.2015 (RUD-7). The premises of M/s Krishna Capital, Shop No. 10, Central Market, DDA Flats, Kalkaji, New Delhi-110002 was found non-existent at the given address. 2. From above it appear....

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....so called upon to Show Cause to the Joint/ Additional Commissioner of Customs (Imports) ICD(TKD), New Delhi as to why penal action should not be taken against him under Section 112(a) and (b) and /or Section 114A and Section 114AA of the Customs Act, 1962. 4. I have heard Shri Ashish Batra, Ld. Advocate for the appellant and Shri K. Poddar, Ld. DR for the Department. 5. Ld. Counsel for the appellant has impressed upon sub-section 5 and sub-section 6 of Section 28 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. Co....

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....t of the notice and inform the proper officer of such payment in writing. 6) Where the importer or the exporter or the agent or the employee of the importer or the exporter, as the case may be, has paid duty with interest and penalty under sub-section (5), the proper officer shall determine the amount of duty or interest and on determination, if the proper officer is of the opinion - (i) that the duty with interest and penalty has been paid in full, then, the proceedings in respect of such person or other persons to whom the notice is served under sub-section (1) or sub-section (4), shall, without prejudice to the provisions of Sections 135, 135A and 140 be deemed to be conclusive as to the matters stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then, the proper officer shall proceed to issue the notice as provided for in clause (a) of sub-section (1) in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information under sub-section (5)." 8.....

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....od of two years as shall be computed from the date of receipt of said information. The Department has miserably failed to follow the prescribed procedure. 10. 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 excluding the case in one to be out the ambit thereof. But I am of the opinion that Section 28(5) and 28(6) are applicable for all those cases as are mentioned in sub-section 4 of Section 28. Perusal thereof makes it clear that collusion, wilful mis-statement or suppression of facts are mentioned to be the reason for evasion of duty. The alleged Act of appellant is squarely covered under the said sub-section. Hence, I opine that case....