TaxTMI 
TaxTMI 
2023 (7) TMI 550
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....common in all the four writ petitions, we propose to notice the essential 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 ....
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..../s Canon India Private Limited vs Commissioner of Customs. Vide the said judgement, the Hon'ble Apex Court has ruled that the Additional 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, t....
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....issioner of Customs (Grade III), ICD (Import), Tughlakabad, New Delhi. The SCN purports to be under Section 28(4) of the Customs Act, 1962 [the Act] and refers to consignments imported vide five Bills of Entry numbered as 5959204, 5958177, 6299498, 6644758, 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....
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....that the respondents harboured the belief that the aforenoted two communications would clearly fall within the ambit of Section 28(9A)(c) and it was in that background that the SCN proceedings were not finalized. 7. For the purposes of examining and evaluating the correctness of that submission, the Court firstly turns 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 ....
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.... Provided that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as may be prescribed; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of, - (i) his own ascertainment of such 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 wh....
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....of the duty specified in the notice or the duty so accepted by that person, within thirty days of the receipt 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, 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....
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....rim order of stay has been issued by the Appellate Tribunal or the High Court or the Supreme Court; or (c) the Board has, in a similar matter, issued specific direction or order to keep such matter pending; or (d) the Settlement Commission has admitted an application made by the person concerned, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty or interest under sub-section (8) and in such case, the time specified in sub-section (9) shall apply not from the date of notice, 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 ....
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....etermining duty under sub-section (8) has not been passed before the date on which the Finance Bill, 2015 receives the assent of the President, shall, without prejudice to the provisions of Sections 135, 135-A and 140, as may be applicable, be deemed to be concluded, if the payment of duty, interest and penalty under the proviso to sub-section (2) or under sub-section (5), as the case may be, is made in full within thirty days from the date on which such assent is received. Explanation 4.-For the removal of doubts, it is hereby declared that notwithstanding anything to the contrary contained in any judgment, decree or order of the 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 af....