TaxTMI 
TaxTMI 
2023 (8) TMI 864
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....o. 1. Petitioner No. 2 and 3 are the Country Manager cum Director and Chief Financial Officer, respectively, of Petitioner No. 1. 3. Respondent No. 2/DRI states that it received credible information that Petitioner No. 1 is importing consignments of branded watches of Swiss origin falling under Customs Tariff item 91021100/ 91021900, from different related overseas suppliers and is resorting to mis-declaration of retail sale prices ("RSP") to evade payment of appropriate customs duty. It was alleged that watches were notified for retail sale price-based assessment for payment of CVD less abatement. 4. It was alleged that certain authorised retailers of Petitioner No. 2 were changing the MRP. Searches were carried out by the officers of Respondent No. 2 on 17.02.2017 at various premises of Petitioner No. 1 and also at the premises of various retailers. 5. Certain watches valued at Rs.5,68,87,800/-were detained during the search on 17.02.2017. During the pendency of the investigation, the said watches were seized vide Seizure Memo dated 06.06.2017. Watches worth Rs. 39,47,18,823/- detained from the premises of seven retailers of petitioner No. 1 were also seized vide Seizure Memo ....
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....e Hon'ble Apex Court in Canon India Private Ltd. (supra). It is further submitted that the amendments have been carried out in the Customs Act in the Finance Bill, 2022 and the changes have been made in Sub-section 34 of Section 2 of the Customs Act. In terms thereof, more classes of Officers of Customs have been specified as proper officers. 10. It is argued that pursuant to the memorandum explaining the provisions of the Finance Bill, 2022, the Finance Act, 2022, and the validation provisions under Section 97, the legislative intent has been made clear that the officers of the DRI are and were always proper Officers under the Customs Act. 11. Mr. Harpreet Singh, learned Counsel also submitted that, in the present case, the impugned SCN was issued on 14.02.2018, that is, prior to the amendment carried out in Section 28(9) of the Customs Act and therefore would be governed by the said provision as in force prior to its amendment with effect from 29.03.2018. 12. He submits that, prior to the amendment, which was carried out with effect from 29.03.2018, Section 28(9) of the Customs Act did not provide for strict timelines for determining duty under Section 28(8) of the Customs Act....
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....and has lapsed in view of Section 28(9) of the Customs Act. 19. Section 28(9) of the Customs Act, as in force prior to 29.03.2018 read as under: "[28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxxx xxxx xxxx xxxx (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, [where it is possible to do so], in respect of case falling under clause (a) of sub-section (1); (b) within one year from the date of notice, [where it is possible to do so] in respect of cases falling under sub-section (4):" 20. Section 28(9) and 9(A) of the Customs Act pursuant to amendment read as under: "[28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxxx xxxx xxxx (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, [xxx], in respect of case falling under clause (a) of sub-section (1); (b) within one year from the date of notice, [xxx] in respect of cases falling under sub-section (4): [PROVIDED that where t....
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....inform the assessee concerned, the reason for non-determination of the duty or interest, and in such case, the time prescribed in Sub-section (9) apply not from the date of Show Cause Notice but from the date when such reason ceases to exist. 23. However, explanation to Section 28(9) of the Customs Act specifically provides that in case where the notice has been issued after the 14th day of May, 2015 but before the date on which the Finance Bill, 2018 received the assent of the President, the said notice shall continue to be governed by the provisions of Section 28 of the Customs Act as it stood immediately prior to the amendment. 24. From the above, it is, therefore, clear that, with effect from 29.03.2018, it is mandatory for the proper officer to adjudicate the Show Cause Notices that are issued after the amendment to Section 28(9) of the Customs Act within a period of six months or one year of the date of issuance as the case maybe. The same can be extended for a further period of one year by an officer senior in rank to the proper officer, after considering the circumstances under which the proper officer was prevented from passing an order within the prescribed period. 25.....
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....dgment passed by the Punjab and Haryana High Court in M/s Harkaran Dass Vedpal (supra), a further amendment was carried out by a Finance Act, 2020 dated 27.03.2020. The same, came into effect retrospectively from 29.03.2018. By Finance, Act, 2020, the Explanation 4 to Section 28 of the Customs Act was substituted and the same reads as under : "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." 30. The intention of the legislation, thus, is apparent that the show cause notices which were issued prior to the Finance Act coming into force the Finance Act, 2014 were required to be gov....
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.... Limited (supra), had an occasion to consider Section 73(4B)(a) and (b) of the Finance Act, 1994, which read as under: "Section 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. - xxx xxx xxx (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2) - (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (1) or the proviso to sub-section (4A)." 36. Section 73, as referred to above, contains a provision that is identically worded as the erstwhile Section 28(9) of the Customs Act. This Court, after considering the facts of that case, had allowed the writ petition on the ground that the Show Cause Notice was not adjudicated within the time prescribed. 37. This Court after considering the circumstances as narrated by the Revenue, held as under: "12. In the present case, from the respondents' list of dates, it is apparent that it was certainly possible for the adjudicating ....
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....ated 03.11.2020. 27. Submission filed by the petitioner dated 25.11.2020 with respect to hearing dated 09.11.2020. 28. Personal hearing letter dated 18.01.2021. 29. Email dated 01.02.2021 to reschedule the date of personal hearing of 27.01.2021 for 09.02.2021. 30. Personal hearing letter dated 02.02.2021 wherein personal hearing for 09.02.2021 was granted. 31. Record of personal hearing on 09.02.2021. 40. It is apparent from the documents and the timelines reflects by them that no sincere efforts have been made by the Department for adjudicating the impugned SCN. Despite being aware of the provisions of the Customs Act, admittedly, no steps were taken by the Department from 29.04.2019 that is the date, the Adjudicating Officer sent a letter to DRI seeking certain clarifications of the documents, and 15.10.2020 when they issued another letter granting personal hearing to the petitioners. It is, thus, admitted that the Department for almost a period of 17 months slept over the matter despite the specific mandate of even the unamended Section 28(9) of the Customs Act that the duty shall be levied within a period of 12 months from the date of issuance of the notice. 41. It ....