TaxTMI 
TaxTMI 
2023 (7) TMI 550
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....ial facts as they obtain in Gautam Spinners only. 2. As would be evident from the record, a Show Cause Notice [SCN] dated 05 August 2021 came to be issued against the said petitioner in respect of five Bills of Entries. The aforesaid action appears to have been initiated in the backdrop of an investigation which was initiated by the Directorate General of Intelligence [DRI] and on the basis of inputs that had been received by it. Upon the issuance of the SCN, the petitioner discloses that the Assistant Commissioner of Customs apprised them that the competent authority had accorded due approval to keep adjudication proceedings pertaining to the said notice in abeyance and till further orders in light of the provisions made in Section 28(9A)(c) of the Act. According to the petitioner, the said information was provided to them on 21 March 2022. The SCN proceedings are thereafter stated to have been fixed for consideration on 09 December 2022. The petitioner appeared before the second respondent and filed their submissions on that date. The petitioner avers that their representative was again verbally informed by the second respondent that pending the Central Board of Indirect Taxes a....
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....dditional Director General (ADG) of Directorate of Revenue Intelligence (DRI) is not the proper officer to issue Show Cause Notice (SCN) under sub-section (4) of section 28 of the Customs Act, 1962. The Apex Court has concluded that the entire proceeding in the present case initiated by ADG (DRI) by issuing SCN, as invalid and without any authority of law. The Apex Court has accordingly set aside the subject SCN. 2. Further, attention is drawn to the specific reference for seeking Board's direction with respect to SCN dated 19.03.2019 against Sh. Anil Aggarwal and 11 others where the adjudication of the SCN would get barred by the limitation of time on 18th March, 2021 under sub-section (9) of section 28 of the Customs Act, 1962, on account of the inability to proceed further due to the said judgement of the Hon'ble Supreme Court. 3. The matter has been examined. The implications of the said judgement are under active examination in the Board. Therefore, the Board has decided that for the present and until further directions, the said SCN may be kept pending. 4. Further, all the fresh SCNs under Section 28 of the Customs Act, 1962 in respect of cases presently being i....
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....58, 6645034. 2. As would be manifest from a reading of the SCN, the same came to be issued in the backdrop of certain investigations undertaken by the Directorate of Revenue Intelligence [DRI]. The SCN is dated 05 August 2021 and would thus ordinarily be governed by the provisions set out in Section 28(9). 3. The respondents, however, have referred to two directives issued by the Central Board of Indirect Taxes and Customs ["the Board"] dated 17 March 2021 and 16 April 2021 to contend that in light of those directions, the period of limitation within which the SCN was liable to be finalised would be governed by Section 28(9A)(c). 4. It becomes pertinent to note since the SCN had been issued under Section 28(4), it would be the period of one year as prescribed in Section 28(9)(b) which would have applied. Read along with the Proviso appended thereto, the respondents would have had a period of one additional year subject to compliances being made in terms of the said statutory provision. 5. It is the case of the petitioner that not only has the period of one year not been extended as contemplated in law, even the directives issued by the Board would not apply for the followin....
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....ns its gaze upon the two communications dated 17 March 2021 and 16 April 2021. As is manifest from a reading of the first directive of the Board, it was essentially dealing with cases where SCNs' may have been issued by officers of the DRI proceeding on the assumption that they were authorized so to do by virtue of Section 28 of the Act. It was this class of SCNs' which came to be impacted by the judgment of the Supreme Court in Canon India and which had held that an officer attached to the DRI would not be liable to be understood to be a "proper officer" for the purposes of initiation of proceedings under Section 28. The directive of 17 March 2021 in paragraph 3 then proceeds to allude to "said" SCN which had been issued against Sh. Anil Aggarwal and 11 others. Bearing in mind the fact that the said SCN was about to become barred by limitation on 18 March 2021, the Board directed that the said SCN be kept pending. It however further clarified in paragraph 4 of that directive itself that in all other cases in which an investigation by the DRI is continuing, fresh SCN's may be got issued by the jurisdictional Commissionerates. 8. In terms of the directive of 16 April 2021, the Boar....
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.... duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under Section 28-AA or the amount of interest which has not been so paid or part-paid: Provided that the proper officer shall not serve such show cause notice, where the amount involved is less than Rupees One hundred. (2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (1) shall inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest: Provided that where notice under clause (a) of sub-section (1) has been served and the proper officer is of the opinion that the amount of duty along with interest payable thereon under Section 28-AA or the amount of interest, as the case may be, as specified in the notice, has been paid in full within thirty days from the date of receipt of the notice, no penalty shall be levied and the proceedings against ....
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....ermination, 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, 135-A 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 two years shall be computed from the date of receipt of information under sub-section (5). (7) In computing the period of two years referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), the period during which there was any stay by an order of a court or tribunal in respect of payment of such duty or interest shall be excluded. (7-A) Save as otherwise provided in clause (a) of sub-section (1) or in sub....
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.... but from the date when such reason ceases to exist. (10) Where an order determining the duty is passed by the proper officer under this section, the person liable to pay the said duty shall pay the amount so determined along with the interest due on such amount whether or not the amount of interest is specified separately. (10A) Notwithstanding anything contained in this Act, where an order for refund under sub-section (2) of Section 27 is modified in any appeal and the amount of refund so determined is less than the amount refunded under said sub-section, the excess amount so refunded shall be recovered along with interest thereon at the rate fixed by the Central Government under Section 28-AA, from the date of refund up to the date of recovery, as a sum due to the Government. (10-B) A notice issued under sub-section (4) shall be deemed to have been issued under sub-section (1), if such notice demanding duty is held not sustainable in any proceeding under this Act, including at any stage of appeal, for the reason that the charges of collusion or any wilful mis-statement or suppression of facts to evade duty has not been established against the person to whom such notice was....
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.... Appellate Tribunal or any Court or in any other provision of this Act or the rules or regulations made thereunder, or in any other law for the time being in force, in cases where notice has been issued for non-levy, short-levy, non-payment, short payment or erroneous refund, prior to the 29th day of March, 2018, being the date of commencement of the Finance Act, 2018 (13 of 2018), such notice shall continue to be governed by the provisions of Section 28 as it stood immediately before such date." 10. As would be evident from a reading of the aforesaid provision, sub-section (4) provides a window of five years from the relevant date within which proceedings under the said provision may be initiated. The proceedings so initiated are liable to be brought to a close in accordance with the statutory timelines which stand set out in subsection (9). In terms of sub-section (9) and since the notice had been issued with reference to Section 28(4), the proceedings were liable to be brought to a close within one year from the date of the notice and in the facts of the present case, the same being computed from 05 August 2021. 11. Of equal significance is the amendment which came to be intro....