AI Drafter 
TaxTMI 
TaxTMI 
2024 (3) TMI 371
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.... dated 10-08-2022 bearing No. 113-114/CUS/CCP/2022 which is at Annexure -"1" of this writ petition passed by the Respondent No. 3, in exercise of powers conferred under Section 128 read with Section 128A of the Customs Act, 1962 and holding/declaring that the said impugned Order is bad in law as is passed ignoring the mandatory provisions of Section 28 of the Customs Act, 1962; B. For issuance of writ(s), order(s) and/or direction(s), quashing and setting aside the impugned Order-in-Original dated 19-11-2018 bearing No. CC(P)/BBSR/CUS/No-16/Joint Commissioner/2018 passed by the Respondent No. 4 which is at Annexure-"2" of this Petition and holding/declaring that the said impugned Order is bad in law as is passed ignoring the mandatory provisions of Section 28 of the Customs Act, 1962 and also that it is barred by limitation under Section 28(9)(a) ibid; C. For issuance of writ(s), order(s) and/or direction(s), quashing and setting aside the impugned Order-in-Original dated 19-11-2018 bearing No. CC(P)/BBSR/CUS/No-17/Joint Commissioner/2018 passed by the Respondent No. 4 which is at Annexure-"3" of this Petition and holding/declaring that the said impugned Order is ....
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....irection(s), quashing and setting aside the impugned Final Assessment Order dated 20/21.09.2021 bearing Order-in-Original No.AC/DMR/FA/IMP/02/2021 passed by the Respondent No. 4 finally assessing the Bill of Entry No. 341/HC/2012-13 Dated 26.11.2012, which is at Annexure-"3" of this Petition and holding that the finalization of provisional assessment in the instant case is barred by limitation and without jurisdiction; D. For issuance of writ(s), order(s) and/or direction(s), quashing and setting aside the impugned Final Assessment Order dated 03-04-2018 bearing No. C. No. VIII(6)40/CUS/DMR/2012/447 issued by the Respondent No. 3 finally assessing the Bill of Entry No. 260/HC/2011-12 Dated 20.03.2012, which is at Annexure-"4" of this Petition and holding that the finalization of provisional assessment in the instant case is barred by limitation and without jurisdiction; E. For issuance of writ(s), order(s) and/or direction(s), quashing and setting aside the impugned Final Assessment Order dated 03.04.2018 bearing No. C. No. VIII(6)40/CUS/DMR/2012/448 issued by the Respondent No. 3 finally assessing the Bill of Entry No. 261/HC/2011-12 Dated 20.03.2012, which is at....
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....of Entry No. 261/HC/2011-12 Dated 20-03-2012 proposing in each case differential Basic Customs duty of Rs. 24,69,401/-@ 5% along with interest under Section 28AA and penalty under Section 112(a) and also confiscation of 3650 MT of Steam Coal of the value of Rs. 2,32,76,477/- under Section 111(d), Section 111(m) and Section 112(a) of the said Act. Both the Show Cause Notices are issued under Section 28(1) as no case of collusion, wilful mis-statement or suppression of facts is alleged and no penalty for such offences under Section 114A of the Customs Act, 1962 is proposed. 6. Mr. Kartik Kurmi assisted by Mr. N. K. Pasari and Ms. Sidhi Jalan, learned counsels for the petitioner submits that the Show Cause Notice is issued under Section 28(1) as no case of collusion, wilful mis-statement or suppression of facts is alleged and no penalty for such offences under Section 114A of the Customs Act, 1962 is proposed or imposed. In the year 2012, the Petitioner entered into High Seal Sale vide Agreement dated 02-03-2012 with M/s QVC Exports Private Ltd., (Bill of Entry No. 260/HC/2011-12] and Agreement dated 02-03-2012 with M/s QVC Exports Private Ltd., (Bill of Entry No. 261/HC/2011-12] f....
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....under Section 28 of the Customs Act, 1962 along with interest under Section 28AA on the ground that the imported Coal is not "Steam Coal" falling under SH 27011920 but "Bituminous Coal" falling under SH 27011200 and the rate of applicable BCD is 5% ad-valorem under Sl. No. 124 of Customs Tariff Notification No. 12/2012-Cus dated 17-03-2012 and not NIL as claimed by the Petitioner under Sl. No. 123 of the said Notification. 8. Learned counsel specifically asserted that the Show Cause Notices are issued under Section 28(1) as no case of collusion, wilful mis-statement or suppression of facts is alleged and no penalty for such offences under Section 114A of the Customs Act, 1962 is proposed. The Respondent No. 3 vide one earlier Order-in-Appeal dated 01-08-2022 bearing No. 107-110/CUS/CCP/2022 disposed of the said two appeals against Final Assessment of Bill of Entry No. 260/DC/2011-12 and Bill of Entry No. 261/HC/2011-12 including finalization of two other Bill of Entries, by a common Order-in-Appeal dated 01-08-2022, set aside the Final Assessment Orders dated 03-04-2018 (Annexure-10" & Annexure-11] against which the said appeals were filed before him and remanded the matter back....
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....t determining the duty or interest is even communicated to the Petitioner as mandated U/s 28(9A). It is further submitted by Ld. Counsel that the proviso to Clause (a) of sub-Section (1) of Section 28 provides for mandatory pre-show cause notice consultation. The Respondent No. 2 in exercise of powers under Section 157(2) read with Section 28(1)(a) of the Customs Act, 1962 has framed Pre-Notice Consultation Regulations, 2018 w.e.f. 02-04-2018 vide Notification No. 29/2018-Cus. (NT) dated 02-04-2018. It is submitted that under proviso to Section 28(1)(a) of the Customs Act, 1962 provides that before issuing the show cause notice, the proper officer shall hold pre-notice consultation with the person chargeable with duty or interest in such manner as prescribed under the Pre-Notice Consultation Regulations, 2018. The Respondent No. 4 vide impugned Order-in-Originals both dated 19-11-2018 (Annexure-2 & Annexure-3") against two Show Cause Notices both dated 20-04-2018, (Annexure-"4" and Annexure "5") after lapse of 7 months i.e. beyond limitation of six months as provided under section 28(9)(a) of the Act in respect of Bill of Entry No. 260/HC/2011-12 dated 20-03-2012 and Bill of Ent....
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....ssment Orders dated 26-.06.2021 (Annexure-2), dated 20/21.09.2021 (Annexure-3), dated 03.04.2018 (Annexure-4) and dated 03.04.2018 (Annexure-5) to the extent he has remanded the matter back to the Respondent No. 4 for fresh initiation of proceedings for finalization of provisional assessment under Section 18(2) of the Customs Act, 1962 even though the proceeding is barred by limitation. The Petitioner by the instant writ petition is further challenging the legality and validity of impugned Final Assessment Order dated 26.06.2021 (Annexure-2), dated 20/21.09.2021) (Annexure-3), dated 03.04.2018 (Annexure-4) and dated 03.04.2018 (Annexure-5) finalizing 4 Bill of Entries No. 158/HC/2012-13 Dated 17.07.2012, No. 341/HC/2012-13 Dated 26.11.2012, No. 260/HC/2011-12 Dated 20.03.2012 and No. 261/HC/2011-12 Dated 20.03.2012 respectively. From records it is evident that the aforesaid 4 Bill of Entries were filed in the year 2012. The Superintendent Customs, Dhamra Port, in the State of Odisha provisionally assessed the said Bill of Entries under Section 18(1) of the Customs Act, 1962 on the date of presentation and provisionally permitted clearance of the imported Steam Coal for home cons....
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....tion of instruction issued by Respondent No. 2 in exercise of power under Section 151A of the Customs Act, 1962 and is binding on the officers working under the Customs Act, 1962. Further in respect of Bill of Entry No. 158/HC/2012-13 Dated 17.07.2012 and Bill of Entry No. 341/HC/2012-13 Dated 26.11.2012, no show cause notice and/or adjudication order under Section 28 of the Customs Act, 1962 have been issued as yet even after lapse of 10 years (one decade), hence, the demand of duty of Rs 75,76,956/- and Rs. 62,83,824/- aggregating to Rs. 1,38,60,780/- is also not sustainable being hopelessly barred by limitation, and therefore, the Respondent No. 3 committed a serious error by remitting the said matter to the Respondent No. 4 for initiation of a fresh proceeding which is arbitrary, unreasonable and oppressive. 16. Learned counsel for the Revenue submits that M/s. Bihar Foundry & Castings Limited., (Unit: Gautam Ferro Alloys) Main Road, Ranchi-834001. Jharkhand, (hereinafter referred to as the 'Petitioner') is an importer and imported Coal through the port of Dhamra. The Petitioner had imported and cleared South African Coal in bulk and classified the same under CTH 270....
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....te Order against such provisional Assessment of those four nos. of Bill of Entries. In W.P.(T). No. 5161 of 2022, the two Show Cause Notices (issued under Section 28 of the Customs Act, 1962, issued after finalization of Provisional Assessment) & Order-in-Original issued against two Bill of Entries No. 260/HC/2011-12 & No. 261/HC/2011-12 and 1st Appellate Order against Order-in-Original are the subject matter of challenge. 18. Against, the other two Bill of Entries No. 158/HC/2012-13 & No. 341/HC/2012-13 which are among the four nos. of Bill of Entries under challenge in 1st W.P.(T) No. 4340 of 2022, no show cause notice has yet been issued even after lapse of 10 years from the date of provisional assessment. From record it is further evident that there is delayed finalization of the provisional Bill of Entries No. 158/HC/2012-13, Bill No. 341/ HC/2012-13, Bill No. 260/HC/2011-12 & Bill No. 261/HC/2011-12; however, the same is contrary to Para 3.1 of "Chapter 7 Provisional Assessment" of CBIC Manual of Instructions which is issued by the CBIC in exercise of powers under Section 151A of the Customs Act, 1962 and which is binding on the Respondent. For brevity, the same is quot....
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.... assessment is barred by limitation. Para 3.1 of the CBIC Instruction; the limitation under Rule 5 of 2018 Regulation is applicable prospectively w.e.f. 14-08-2018, is not applicable to present case as the Bills of Entries are assessed provisionally in 2011-12 and 2012-13 i.e. much before 14-08-2018. 21. It is not out of place here to mention that Rule 5 of Customs (Finalization of Provisional Assessment) Regulation, 2018 (the 2018 Regulation) applies only to provisional assessment made after 14-08-2018; hence, in the case at hand it cannot be applied on the provisional assessments of the 4 Bill of Entries as they are made in the year 2012. The limitation for finalization to the case at hand would be governed by Para 3.1 of the CBIC Instruction as per which the finalization of provisional assessment is to be made expeditiously, well within 6 months whereas in the instant case the finalization is done after 6 years to 9 years. The Punjab & Haryana High Court in the case of Golden Enterprises Vs. CC reported in 2022 (379) E.L.T 334 (P&H) under the Customs Act, 1962 while dealing with similar circumstances following its earlier judgment in the case of Gupta Smelters Pvt. Ltd Vs ....
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....of W.P.(T) No. 4340 of 2022. After finalization, the Show Cause Notice under Section 28 of the Customs Act was issued on 20-04-2018(Annexure-22) and the adjudication Order was passed on 19-11-2018(Annexure-24). The said Show Cause Notices and adjudication Orders are subject matter of W.P.(T) No. 5161 of 2022. 23. So far as W.P.(T) No. 5161 of 2022 is concerned; in this writ petition 1st Appellate Order dated 10-08-2022 is challenged along with legality and validity of two SCNs dated 20-04-2018 and legality and validity of two Order-in-Original both dated 22-11-2018, both against two Bill Entries i.e. (Bill of Entry No. 260/HC/2011-12 and Bill of Entry No. 261/HC/2011-12 respectively). As discussed herein above; both the impugned Order-in-Originals dated 19-11-2018 are barred by limitation of 6 months under Section 28(9)(a) of the Customs Act, 1962 which Respondent No. 3 failed to appreciate while passing impugned 1st Appellate Order dated 10-08-2022. Due to delayed passing of the Order-in-Originals, entire proceeding right from impugned SCNs dated 20-04-2018 deserves to be quashed and set aside. 24. Having regards to the aforesaid discussions we hold that the 1st Appellate Or....
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....passing the Order-in-Originals by the competent authorities, facts of which are not disputed by the Respondent in their Counter Affidavits. Further, in the instant case, no case of collusion or wilful mis-statement or suppression of fact is made out. Section 114A of the Customs Act provides for imposition of penalty in case of collusion, wilful mis-statement or suppression of facts. 27. Though, penalties are imposed in the Order-in-Originals under Section 111(d) & (m) and Section 112(a) which does require ingredients of collusion, wilful mis-statement or suppression of facts. In the instant case for absence of collusion, wilful mis-statement or suppression of fact, no penalty under Section 114A have been imposed, hence, extended period of one year is not attracted in the instant case. Further, the mandatory Pre-SCN consultation as mandated under proviso to Section 28(1)(a) of the Customs Act, 1962 read with Pre-Notice Consultation Regulation, 2018 are not complied with while issuing the impugned SCNs both dated 20-04-2018, hence, the subsequent Order-in-Original both dated 19-11-2018 and the impugned 1st Appellate Order dated 10-08-2022 are bad in law being void ab initio and a ....