TaxTMI 
TaxTMI 
2019 (12) TMI 198
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....s activity. Even as per the Foreign Trade Policy, the petitioner is not allowed to import refurbished products. As such, the petitioner imported new units to replace the repaired or malfunctioning units. It is contended that the petitioner was paying Additional Duty of Customs (Countervailing Duty) under Section 3 of the Customs Tariff Act, 1975 on the transaction value of the petitioner's goods imported under the Apple Care brand of services. The Customs Department at the Air Cargo Complex disputed the valuation methodology adopted by the petitioner on the subject goods on the premise that the Retail Sales Price (RSP)/Maximum Retail Price (MRP) has to be applied, not the Transaction Value. 3. It is submitted that on 14.12.2012, a representation was given by the petitioner company to the second respondent to provide an opportunity to put- forth the explanation inasmuch as the countervailing duty paid on the transaction value and not on MRP. On such opportunity provided, the second respondent on consideration of all the information provided by the petitioner regarding adoption of transaction value, issued a letter dated 27.02.2013 inter alia directing the petitioner to pay co....
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....without any specific reference to any Act or omission on the part of the petitioner. The executive order dated 27.02.2013 states that all the goods under the Apple Care umbrella of services were to be assessed to customs duty under the RSP Valuation. It was argued that the impugned show cause notice is in complete contradiction to the circular dated 10.03.2017 issued by the Central Board of Excise and Customs. 7. The learned counsel for the revenue has filed statement of objections. It is contended that the writ petition is not maintainable before this court by-passing the efficacious alternative remedy provided under the Act. It was submitted that to meet the principles of natural justice, personal hearing was fixed on 30.1.2018 and the same has been adjourned at the request of the petitioner from time to time. The petitioner without attending before the original authority has rushed to this court. 8. It was argued that only during the queries raised on the petitioner while answering to question No.4 to the statement dated 28.6.2017, the petitioner admitted the fact that in very small percentage of cases, if the damage is not covered under warranty, they support the customer....
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....ve heard both sides, Mr. R.P. Bhatt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of non-payment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or willful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso. 19. Thus, Section 28 of the Act clearly contemplates two situations, viz. inadvertent non- payment and deliberate default. The former is canvassed in the main bo....
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....llant laboured under the very doubt which forms the basis of the issue before us and hence, decided to address it to the concerned authority, the Development Commissioner, thus, in a sense offering its activities to assessment. The Development Commissioner answered in favour of the appellant and in its reply, even quoted a letter by the Ministry of Commerce in favour of an exemption the appellant was seeking, which anybody would have found satisfactory. Only on receiving this satisfactory reply did the appellant decide to claim exemption. Even if one were to accept the argument that the Development Commissioner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that "the appellants had not brought anything on record" to prove their claim of bona fide conduct, on the appellant. It....
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....o five years. That unless the assessee is put to notice the assessee would have no opportunity to meet the case of the Department. It was held: "2....There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1) , the show-cause notice must put the assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso...." (Emphasis supplied) 12. In Siemens India Limited Vs. State of Maharashtra and others reported in (2006)12 SCC 33 it is observed thus: "Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appea....
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....department relating to the period from1.3.1994 to 30.11.1996 is not a case to invoke section 11A of the Central Excise Act, 1944. 15. In the case of ACC Limited Vs. Union of India the assessee was before this court challenging the issuance of third show cause notice after the proceedings were adjudicated on more than two occasions. In that context it was held that it is not permissible to reopen the issue, which stands concluded on the spacious ground that the company had made mis-statements, the third show cause notice is based on unsustainable grounds. 16. In the case of Union of India Vs. I.T.C. Limited and another reported in 1985 ECR 2013(Kar), this court after examining the show cause notice extensively, issued by the superintendent recorded that the said authority was trying to get round the order of the appellate collector and to undo the same. Accordingly, the reasoning and conclusion of the learned Judge on this aspect is held to be unexceptionable. 17. In the case of Godrej Food Limited and another Vs. Union of India and others reported in 1993 SCC Online MP 66 the Hon'ble Madhya Pradesh High Court has observed that a mere mechanical repetition of the langua....
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.... case is on revenue and these ingredients need to be clearly brought out in the Show Cause Notice alongwith evidence thereof. The active element of intent to evade duty by action or inaction needs to be present for invoking extended period. 3.6 Power to invoke extended period is conditional: Power to issue notice for extended period is restricted by presence of active ingredients which indicate an intent to evade duty as explained above.Indiscriminate use of such restricted powers leads to fruitless adjudications, appeals and reviews, inflates the figures of outstanding demands and above all causes unnecessary harassment of the assesses. Therefore, before invoking extended period, it must be ensured that the necessary and sufficient conditions to invoke extended period exists." 20. The relevant paragraphs of the Show Cause Notice dated 27.06.2017 impugned are quoted for ready reference: "7. Whereas, letter dated 03.06.2017 was sent to the importer seeking details of imports of Applecare products i.e., warranty replacement units of IPods, Ipads, Iphones for the period 01.07.2012 to 09.12.2012. As, the importer has not furnished the details even after repeated re....