TaxTMI 
TaxTMI 
2025 (1) TMI 1313
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....Import), ICD Tughlakabad, New Delhi, and the impugned Show Cause Notice bearing No. DRI F.No. 23/118/2005-DZU/VE (hereinafter "SCN") dated 23rd May, 2008, issued by the Respondent No. 2 - Additional Director General, Directorate of Revenue Intelligence, Delhi Zonal Unit (hereinafter "DRI"). 3. The impugned Order-in-Original is challenged, inter alia, on the ground that validity of the impugned SCN was under consideration before this Court in W.P.(C) 15436/2023 and the impugned Order-in-Original was passed while the said petition was pending, in violation of the principles of natural justice. The impugned SCN and the proceedings initiated thereunder have been challenged on the ground that the same are barred by limitation in terms of Section 28 of the Customs Act, 1962 (hereinafter, "Act"). 4. The Petitioners are engaged in the business of importing and trading of various types of papers and paper board including newsprint and lightweight coated paper (hereinafter "subject goods"). The DRI suspected mis-declaration and undervaluation in the import of subject goods by certain importers, who were alleged to be working with various 'Registrar of Newspapers in India' certificate h....
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....T. 53.3.2 In view of the real transaction value in case of 14 consignments imported by M/s Vijay Enterprises from M/s Belsun Corp., USA obtained during investigation as reflected in table under Para 50 above the unit price as declared in the import documents of consignments of goods imported in M/s Vijay Enterprises from M/s Belsun Corp. USA needs to be rejected under Section 14 of the Customs Act, 1962 read with Rule 4 and 10A of the Customs Valuation (Determination of Prices of the Imported Goods) Rules, 1988 and needs to be enhanced as shown in Table A-1. 53.3.3 From the evidences of actual transaction value as explained in paras herein above in relation to 14 consignments imported by M/s Vijay Enterprises from Belsun Corporation, where the value declared ranged between USD 180 to USD 250 PMT, it can be reasonably concluded that the rest of the eight consignments imported from M/s Belsun Corporation in the name of Vijay Enterprises have also been imported by undervaluing & mis-declaring the value to be USD 180 to USD 250 PMT. Thus their value needs to be re-determined under Rule 6 of the Valuation Rules. As the actual values of the consignments ranged from USD ....
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....hould not be imposed upon them. (iii) The differential duty amounting to Rs. 1255417/- evaded on 520.623 MT of paper covered under bills of entry as detailed in Table A-14, which have been imported and cleared by them, fraudulently, should not be demanded from them under the Proviso to section 28 (1) of the Customs Act, 1962. (iv) Interest under Section 28 AB should not be demanded from them. (v) Penalty should not be imposed upon them under Section 112 (a) & (b) and/or 114 A of the Customs Act, 1962. (vi) The bank guarantee for Rs 616941/- executed by M/s Salwan International Paper Pvt. Ltd for provisional release of consignment imported under bill of entry no. 497335/10.4.06, 497048/7.4.06, 497049/7.4.06, 497336/10.4.06 and 497063 dated 7.4.06 should not be revoked and appropriated and adjusted towards the duty liability." 7. It is the case of the Petitioners that after issuance of the impugned SCN, the Petitioners had made several request vide letters dated 3rd February, 2010 and 5th February, 2010 with the concerned assessing officer to provide all the 'relied upon documents' (hereinafter "RUDs"). However, the Petitioners were not provided....
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....ection 28(2) of Customs Act and order recovery under proviso to Section 28 (1) of the Customs Act, 1962 along with applicable interest under Section 28AB of the Customs Act, 1962 as discussed at para 10 supra; (iv) I impose penalty of Rs. 7,00,000/- (Rs. Seven Lacs) under Section 112 (a) (ii) and Rs. 99,52,308/- (Rupees Ninety Nine Lakh Fifty Two Thousand Three Hundred and Eight) under Section 114A of the Customs Act, 1962 on M/s Vijay Enterprises; (v) I order to appropriate the amount of Rs. 98,63,154/- (Rs. 86,61,722/- + Rs. 12,01,432/-) already paid by noticee during Investigation as discussed at para 10 and order to adjust towards liability against duty, interest and penalty. I further order to appropriate of Bank Guarantees of Rs. 49,05,945/-(Rs. 48,05,730/- + Rs.1,00,215/-) submitted by M/s Vijay Enterprises for provisional release during investigation as discussed at para 10 and order to adjust towards liability against duty, interest and penalty. That I order recovery of balance amount of duty, interest and penalty on M/s Vijay Enterprises from M/s Vijay Enterprises (Noticee no 1/2) through its prop/ controller Sh Prakash Garg; (vi) I imp....
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....enty thousand) on Shri Ashish Garg under Section 112 (a) (ii) of the Customs Act, 1962; (viii) I impose a penalty of Rs. 50,000/- (Rs Fifty thousand) on Shri Utpal Gupta, CHA, under Section 112 (a) (ii) of the Act; (ix) I impose a penalty of Rs. 20,000/- (Rs Twenty thousand) on Shri K.M.R.Nambiar, under Section 112 (b) (ii) of the Act; (x) I impose a penalty of Rs. 20,000/- (Rs Twenty thousand) on Shri Shyam R Sundar, under Section 112 (b) (ii) of the Act; (xi) I impose a penalty of Rs. 20,000/- (Rs Twenty thousand) on Shri Shri Gopal T Khetan. under Section 112 (b) (ii) of the Act." 10. The Petitioners have filed W.P.(C) 5809/2024 challenging the impugned Order-in-Original on the ground of violation of principles of natural justice by the concerned assessing officer. Submissions of Parties: 11. It is the case of the Customs Department that, during the relevant period for adjudication of the impugned SCN, the decision of the Coordinate Bench of this Court in Mangli Impex Ltd. v. Union of India & Ors. [2016:DHC:3435-DB] was rendered due to which the impugned SCN was put in the call book on 29th June, 2016 and again taken out from the call....
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....ate of notice, [xxx] in respect of cases falling under sub-section (4): [PROVIDED that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year: PROVIDED FURTHER that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued.] [(9A) Notwithstanding anything contained in sub-section (9), where the proper officer is unable to determine the amount of duty or interest under sub-section (8) for the reason that- (a) an appeal in a similar matter of the same person or any other person is pending before the Appellate Tribunal or the High Court or the Supreme Court; or (b) an interim order of stay has been issued by the Appellate Tribunal or the High Court or the Supreme Court; or ....
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....the Department as referred above. It is seen that for a period of almost three years, various letters were exchanged. The matter was fixed for personal hearing on more than five occasions. No reason has been provided as to why the hearings were not concluded on the said dates and the duties payable, if any, were not determined. 44. We have also perused the instruction dated 17.03.2021 issued to the Principal Additional Director General, Directorate General of Intelligence (DRI). In terms thereof, a decision was taken by the Board to keep the show cause notices referred therein pending. It is significant to note that the instruction categorically mentions about a show cause notice dated 19.03.2019 and that in terms of the judgment passed by the Apex Court in Canon India Private Limited v. Commissioner of Customs (supra), the proceedings in the case have become invalid. It was mentioned that since the notice was dated 19.03.2019, it would get barred by limitation on 18.03.2021 and be kept pending till the decisions is taken by the Board. The said instructions appear to have been issued to extend the period in terms of Section 28(9A) of the Customs Act. In terms thereof, if t....
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....ithin a stipulated period of time "where it is possible to do so" cannot be countenanced as a license to keep matters unresolved for years. The flexibility which the statute confers is not liable to be construed as sanctioning lethargy or indolence. Ultimately it is incumbent upon the authority to establish that it was genuinely hindered and impeded in resolving the dispute with reasonable speed and dispatch. A statutory authority when faced with such a challenge would be obligated to prove that it was either impracticable to proceed or it was constricted by factors beyond its control which prevented it from moving with reasonable expedition. This principle would apply equally to cases falling either under the Customs Act, the 1994 Act or the CGST Act." 18. The record also shows that there are several other orders/judgments have been passed by various authorities following the same reasoning and rationale, including the following decisions: - Nanu Ram Goyal v. Commissioner of CGST and Central Excise, Delhi, [(2023) 6 Centax 148 (Del.)] - Gala International Pvt. Ltd. v. Additional Director General, Directorate of Revenue Intelligence, Delhi and Ors, 2023 SCC OnL....
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....fore the court could adjudicate on the correctness of the action of the respondents. Is it open to the respondents to materially alter the subject matter of the writ petition pending before the court and then contend that because of such material alteration, the writ petition has become infructuous and that the petitioner should avail the alternative remedy of appeal ? 25. In Harihar Collections v. Union of India [2020] 14 GSTR-OL 294 (Bom), decided on October 15, 2020, this court was confronted with a similar situation when during the pendency of the writ petition, the Commissioner of Customs had passed review order on October 1, 2020 under section 129D (2) of the Customs Act, 1962. This court held as under (page 305 of 14 GSTR-OL) : "26. When this court had taken cognizance of the grievance made by the petitioner and was in seisin of the matter fixing October 6, 2020 for consideration, it was highly improper on the part of Commissioner of Customs (Import-II) to have passed the order dated October 1, 2020 without any intimation to or taking leave of the court. It needs no reiteration that when the court, that too the High Court, is in seisin of a matter, an admin....
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....d taking it up after several years would not be permissible, even if the order-in-original is passed. 22. Coming to the facts of this case, the Show Cause Notice dates back to 23rd May, 2008. The first notice for personal hearing was sent to the Petitioners on 15th January, 2010. Thereafter, communication for providing all the RUDs happened between the Petitioners and the concerned adjudicating officer. The Petitioners were granted personal hearing on 27th February, 2012, 16th March, 2012 and a personal hearing also scheduled for 13th May, 2014. Despite the repeated personal hearing conducted by the concerned adjudicating officer, the impugned SCN was not adjudicated between 2008 and 2016. Even if the date is reckoned from 13th May, 2014 the Mangli Impex decision came only on 3rd May, 2016 and the matter has been placed in the callbook on 29 June, 2016. A few months later, it was retrieved on 3rd January, 2017. Thereafter, impugned SCN was again put in the call book on 3rd November, 2017 and taken out from the call book on 3rd May, 2019. Further, in view of the judgment of the Supreme Court in M/s Canon India (supra), the impugned SCN was again transferred to the call book on 17....