TaxTMI 
TaxTMI 
2025 (3) TMI 15
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....isputed facts of the case and undisputed legal position, each of the issues in dispute and the submissions advanced by both sides with respect to each of them and decide. The impugned order 3. The operative part of the impugned order qua each of the appellants is as follows: Qua Prestige (i) Basic Customs Duty along with differential CVD and education Cess amounting to Rs 36,57,797/- is hereby confirmed and ordered to be recovered from notice no. 1 under section 28(4) of the Customs Act, 1962 [Customs Act]. (ii) Special additional duty amounting to Rs.16,09,431/- is confirmed and ordered to be recovered from the Noticee no. 1 under section 28(4) of the Customs Act, 1962. (iii) The noticee no.1 shall also pay interest under section 28 AA of the Customs Act, 1962. (iv) I also impose penalty of Rs.51,68,228/- plus amount equivalent to interest payable on such confirmed amount of duty mentioned at (iii) of the order till the date of payment of such tax under section 114A of the Customs Act, 1962. Qua Shri Bhalla (v) I impose a penalty of Rs.50,00,000/- on the notice no. 2 under section 114AA of the Customs Act, 1962. Qua Shri ....
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.... which goods may be removed from SEZ unit to DTA. SEZ Rule 47 permits sale of goods in DTA and SEZ Rule 48 prescribes the procedure for such sales. SEZ Rule 48 requires the DTA buyer to file a Bill of Entry for Home Consumption but also provides that the SEZ unit may file the Bill of Entry on the basis of an authorisation from DTA buyer. 8. In this case, not only were the Bills of Entry filed by Prestige but even the duty was assessed and paid by it and not by the buyers. The sale of goods took place after clearance at the buyers' place. Issues in dispute 9. Learned counsel for the appellants vehemently contested the impugned order on the following questions which we shall examine: (i) The Commissioner had no jurisdiction to adjudicate the issue regarding demand of duty against the DTA sale made by SEZ unit under section 30 of the SEZ Act, 2005; (ii) The Additional Commissioner had no jurisdiction to issue the SCN demanding duty against DTA sale made by SEZ unit under section 30 of the SEZ Act, 2005; (iii) The Additional Commissioner had no pecuniary jurisdiction to issue SCN at the relevant date where the demand of duty is more than Rs. 50 lakhs....
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....f conferment of power either on the Additional Commissioner who issued the SCN or on the Commissioner who adjudicated the SCN they had no jurisdiction to issue the SCN and to adjudicate it respectively; (v) Prestige had cleared the goods under section 30 of the SEZ Act; (vi) Prestige is not the importer and hence even the BCD cannot be charged from it; (vii) Since no power has been conferred on the Commissioner as specified officer of the SEZ Act, the adjudication order is issued without jurisdiction and for that reason, the entire proceedings are vitiated. 11. Learned special counsel appearing for the department strongly rebutted the submissions of the learned counsel and submitted as follows: (i) The SCN and the impugned order do not relate to the authorised operations within the SEZ and therefore, the provisions of section 51 of the SEZ Act would not apply; (ii) Therefore, the proceedings demanding duty to be paid under section 28 of the Customs Act are legal and proper; (iii) Section 30 (1) of the SEZ Act provides that in respect of DTA clearances, the goods would be chargeable to all Customs duties as leviable. ....
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....to." 13.1 If the purpose of this Act indicated in its long title is kept in view, the provisions of the SEZ Act and SEZ Rules can be easily understood. SEZ Act is not meant to make SEZ a conduit to import goods into India but is meant to promote exports - either by manufacturing goods or otherwise, such as by trading them internationally. However, it is not always possible to export all goods which are either manufactured within the SEZ area or imported into the SEZ area and therefore, an option of selling the goods to buyers in the DTA is also provided in Section 30 of the SEZ Act. A deeming fiction has been created by Section 53 of the SEZ Act whereby SEZ shall be treated as a territory outside the Customs territory of India for the purposes of undertaking authorised operations. 14. Authorised operations is defined in section 2(c) of the SEZ Act as follows: Section 2: Definitions: In this Act, unless the context otherwise requires,- (c) "authorised operations" means operations which may be authorised under sub-section (2) of section 4 and sub-section (9) of section 15; 15. Section 53 of the SEZ Act treats SEZ in two different ways- both as a territory o....
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....r any class of such goods. (2) Every notification issued under this section and in force immediately before the commencement of the Finance Act, 2003 (32 of 2003) shall, on such commencement, be deemed to have been issued under the provisions of this section as amended by section 105 of the Finance Act, 2003 and shall continue to have the same force and effect after such commencement until it is amended, rescinded or superseded under the provisions of this section. 17. In the absence of any definition of 'customs territory' in either the SEZ Act or in the Customs Act, the expression 'customs territory of India' under the SEZ Act should also be understood as 'outside the control of Customs officers' and treated as if the authorised operations are taking place outside India. No duty is therefore, chargeable on any goods imported into the SEZ and if the goods are moved from SEZ into DTA, a Bill of Entry is to be filed and duty is to be paid as if the goods were imported into India. This presumption is only insofar as it pertains to 'authorised operations', i.e., operations which the developer or entrepreneur is authorised to carry out in the SEZ. If the act....
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....r or entrepreneur; (b) exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods exported from, or services provided, from a Special Economic Zone or from a Unit, to any place outside India; (c) exemption from any duty of excise, under the Central Excise Act, 1944 (1 of 1944) or the Central Excise Tariff Act, 1985 (5 of 1986) or any other law for the time being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) drawback or such other benefits as may be admissible from time to time on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer or Unit to carry on the authorised o....
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.... Indore. If any duty is short paid, he has both the authority and duty to recover it. Merely because the goods were removed from SEZ unit as provided under section 30 of the SEZ Act and not directly imported from outside India would make no difference. 25. Another submission of the learned counsel is that the Commissioner was not the Specified Officer under SEZ Rule 2(zd) and therefore, he was not authorised to adjudicate the SCN and confirm demand of duty. This Rule reads as follows: 2. Definitions: (1) In these rules, unless the context otherwise requires- (zd) " Specified Officer" in relation to a Special Economic Zone means Joint or Deputy or Assistant Commissioner of Customs for the time being posted in the Special Economic Zone; 26. We find nothing in the SEZ Act or SEZ Rules which stipulates that the "Specified Officer" alone can issue a notice for demand of duty under Section 28. On the other contrary, SEZ Rule 47(5) provides for the jurisdictional officers to take action under the Customs Act. It reads as follows: 47. Sales in Domestic Tariff Area.- ***** (5) Refund, Demand, Adjudication, Review and Appeal with regard to m....
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....under section 28. 32. Even if the DTA Bills of Entry are assessed by the specified officers or authorised officers, such assessment is a process under section 17 of the Customs Act. The procedure of issuing a notice to demand duty not paid under section 28 is a process distinct and separate from assessment under section 17, as has been held by the Supreme Court in Union of India versus Canon India Pvt. Ltd. [Review Petition No. 400 OF 2021 in Civil Appeal No. 1827 OF 2018]. The relevant portion of the judgment is reproduced below: "Para 164. ..... (b) As discussed above, the functions of assessment and re-assessment under Section 17 and the recovery of duty under Section 28 are distinct. Therefore, the exercise of functions under Section 17 can only act as a "jurisdictional fact" for the purpose of excluding the jurisdiction of other proper officers empowered under that section for the exercise of the rest of the functions specified therein. Similarly, the exercise of the function of issuing show cause notices under Section 28 by a particular proper officer serves as a jurisdictional fact which would exclude the jurisdiction of other proper officers em....
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....rovided for demanding duty in normal cases and section 28(4) provided for demanding duty invoking extended period of five years in case of collusion, wilful mis-statement or suppression of facts. The relevant provisions of section 28 before and after 2011 are reproduced below: Before 8.4.2011 28. Notice for payment of duties, interest, etc. - (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short- levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty has not been levied or has been short-levied or the inte....
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.... refunded, by reason of,- (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. ******* 40. SCNs demanding duty alleging collusion, wilful misstatement or suppression of facts could be issued under the proviso to section 28(1) before the 2011 amendment and could be issued under 28(4) after the amendment. There is also a proviso to section 28(1) after the 2011 amendment but that deals with some pre-notice consultations. It also needs to be pointed out that even if the demand falls within the normal period of limitation, if any of the elements of collusion, wilful misstatement or suppression of facts is alleged to be present, demand can be issued under section 28(4) [ or the proviso t....
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....emand, the duty claimed became barred even under Rule 10. We are unable to accept this contention as correct. There is no dispute that the officer who made the demand was competent to make demands both under Rule 9(2) as well as under Rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well-settled proposition of law. In this connection reference may usefully be made to the decisions of this Court in P. Balakotaiah v. The Union of India, 1958 SCR 1052 = (AIR 1958 SC 232) and Afzal Ulah v. State of U.P., 1964 - 4 SCR 991 = (AIR 1964 SC 264). Further a common form is prescribed for issuing notices both under Rule 9(2) and Rule 10. The incorrect statements in the written demand could not have prejudiced the assessee. From his reply to the demand, it is clear that he knew as to the nature of the demand. Therefore, I find no substance in the plea of limitation advanced on behalf of the assessee. (emphasis supplied) 43. The Supreme Court followed J K Steel in COLLECTOR OF CENTRAL EXCISE, CALCUTTA versus PRA....
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....is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. 24. Thus, mention of wrong Rule in the demand notice would not be an impediment in the way of the petitioner in inflicting penalty under the correct Rule though the said Rule was not quoted in the demand/show cause notice. From the contents of the show cause notice, it is clear that Respondent No. 1 was made aware that it would be liable to pay penalty for obtaining MODVAT credit wrongly. Respondent No. 1 has put forth its defence against the demand for penalty and has got an opportunity to contest that claim. As such, no prejudice can be said to have been caused to Respondent No. 1 because of wrong mention of Rule in the show cause notice under which, penalty was sought to be imposed on Respondent No. 1. (emphasis supplied) 46. The Calcutta High Court also followed the decision of Supreme Court in Pradyumna Steel in OTA FALLOONS FORWARDERS PVT. LTD. versus UNION OF INDIA [2018 (362) E.L.T. 947 (Cal.)] and held as follows: 24. In The Elphinstone Spinning (supra) the Supreme Court is of the view that, if the authorities have the power to....
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....ed in the manner as contended by the petitioner or otherwise. The fifth issue is answered accordingly. (emphasis supplied) 47. The decision of the Supreme Court laid down in Pradyumn Steel was also followed by several benches of this Tribunal in several other decisions. Thus, mere mentioning of the old provision [proviso to Section 28(1)] instead of the provision applicable to the relevant period [section 28(4)] in the SCN and mentioning of the correct provision [section 28(4)] in the impugned order does not in any way invalidate the impugned order. 48. The submission of the learned counsel that the impugned order is invalid on the ground that it confirmed the demand under section 28(4) while the SCN demanded duty under section 28(1), therefore, has no force. Issue 5: Misconstruction/ misinterpretation of the provision of the notification does not amount to suppression of facts to invoke demand enlarging the period for issuing the SCN under section 28(4) of the Customs Act 49. It is the submission of the learned counsel that if Prestige had misinterpreted or mis-constructed the provision of a notification while self-assessing the Bill of Entry, it does not warrant in....
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.... of any notification because the goods imported into SEZ would have anyway been exempted from Customs Duty by virtue of section 26 of the SEZ Act if they were meant for authorised operations. 54. There were two authorised operations according to Prestige- manufacture and trading. Evidently, the authorised operations in an SEZ are meant for export- either the export of the goods manufactured within the SEZ unit or export of the goods which were imported. Trading in SEZ does not mean importing goods and selling in domestic market. Prestige did not use the imported goods either to manufacture or to export. Instead, it cleared and sold them in the DTA. Even in the Bills of Entry which it filed to clear the goods to DTA, Prestige claimed the benefit of the Notification No. 12/2012-Cus which was available only for goods to be used in manufacture of final goods following the procedure under ICGR, 1996. Prestige sold the goods to traders in the DTA. 55. We, therefore, find no reason for Prestige to have claimed the benefit available to goods to be used in the manufacture when it neither had any such facility to manufacture and it simply imported the goods and within a few days sold t....
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....) of the Customs Act 58. Learned counsel submitted that penalty under section 114A could not have been imposed on Prestige because the demand was raised under section 28(1). As we have discussed above while dealing with the question of the SCN, the demand was NOT raised under section 28(1), as claimed by the learned counsel, but under the proviso to section 28(1) which was the old provision for raising a demand if duty was not paid or short paid by reason of collusion, wilful misstatement or suppression of facts. We have noted that the correct provision applicable during the relevant period was 28(4) which is the same as the old provision of "proviso to section 28(1)". We have also found that the well settled legal position is that merely citing a wrong provision will not vitiate the SCN or the order. Therefore, we find no force in this submission of Prestige that penalty under section 114A could not have been imposed because the demand was under section 28(1). Issue 8: The adjudicating authority failed to deal with the Notification No. 18/2011 which amended earlier Notification No. 45/2005-Cus dated 16.5.2005 since the Notification No. 18/2011 has substituted the words "prod....
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....al and Zeit Electro-Mech Pvt. Ltd. Prestige, being the seller from SEZ, is the exporter of the goods. Any demand of import duty can only by on its buyers and it cannot be on Prestige which is not the importer but is the exporter. Even on this ground the impugned order cannot be sustained and needs to be set aside. Reliance is placed on the following decisions: a) Essar Steel Limited versus Union of India [2010(249) ELT 3(Guj)] b) Union of India versus Essar Steel Ltd. [2010(255) ELT A 115 (SC)] c) Advait Steel Rolling Mills Pvt. Ltd. versus UOI [2012 (286) ELT 535 (Mad.)] d) GMR Aerospace Engineering Ltd. versus UOI [2019(31) GSTL 596(AP)] e) UOI versus GMR Aerospace Engineering Ltd. [(2023) 6 Centax 155 (SC)] 63. Learned special counsel asserts that the demand of duty was correctly made on Prestige who had paid the duty and cleared the goods. 64. We have considered the submissions on this question. 65. The SEZ is treated as if it is outside the Customs territory of India as per section 53 of the SEZ Act although it is physically present within India. It is for this reason, that a Bill of Entry has to be filed to clear the goods....
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....t been levied or not paid or has been short-levied or short-paid or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of,- (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. 69. As per section 28, the short paid duty can be demanded from the person chargeable with duty or interest. The person who is chargeable with duty or interest is the one who had allegedly short paid the duty and cleared the goods to DTA. In the facts of this case, Prestige paid duty and cleared the goods. The entities to which Prestige had sold the goods after clearing them from customs at their places neither filed the Bills of Entry nor paid the duty. They bou....
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....hey were sold the goods at their premises. Until that time, Prestige continued to be the owner of the goods. The term 'importer' includes owner of the goods as per section 2(26) of the Customs Act. Therefore, Prestige, as the owner of the goods, as the one who filed the Bills of Entry, as the one who paid the duty and cleared the goods to DTA, was also the importer in the case. It was responsible for paying the duty short paid and therefore, demand under section 28 has been correctly made on Prestige. 72. The question which may arise is since Prestige is the exporter as far as the DTA Bills of Entry are concerned, can it also be the importer. The answer is in the affirmative. The same person or entity can be both the exporter and importer in many types of situations. If a person clears his personal unaccompanied baggage through customs, he is both the exporter (since he sent the goods from outside India) and the importer (since he is bringing the goods into India). Similarly, if a company transfers its goods from outside India to India to itself or to its sister unit and clears them for home consumption in India, although there will be no sale, import does take place and suc....
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....lies made to SEZ. The relevant portion of this judgment is below: 42. In view of the above discussion and findings arrived at as well as conclusion drawn, the levy of export duty on goods supplied from the Domestic Tariff Area to the Special Economic Zone is not justified. The petitioners are, therefore, not to be called upon to pay export duty on movement of goods from Domestic Tariff Area to Special Economic Zone units or developers. 76. In the case of Advait Steel Rolling Mills, Madras High Court dealt with a Writ Petition assailing Circular F. No. 6/2/2008-SEZ dated 30.6.2008 issued by the Department of Commerce (SEZ) section according to which supply of steel products by DTA units to SEZ would be permitted only after payment of the export duty. Thus, the question in that case was similar to Essar Steels and after referring to Essar Steel, the Madras High Court held that there was no charge of export duty on the goods supplied to SEZ and that it was not open to the respondents (Union of India) to levy export duties through circulars. 77. This judgment of Gujarat High Court in Essar Steel was upheld by the Supreme Court. Neither the facts of Essar Steel nor Advait....
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....elow or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading, sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the standard rate specified in the corresponding entry in column (4) of the said Table; (b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act 1975 (51 of 1975) as is in excess of the additional duty rate specified in the corresponding entry in column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this notification, the condition number of which is mentioned in the corresponding entry in column (6) of the said table. TABLE S. No. Chapter or Heading or Sub-heading or tariff item Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3)....
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....nd it has a long table of goods which exempts basic customs duties and additional duties of customs, of which many are subject to conditions. It was issued in supersession of the previous mega Notification No. 21/2002-Cus which had until then, prescribed the effective rates of duties. 85. Notification No. 21/2002-Cus had, in turn, replaced its predecessor mega Notification No. 17/2001-Cus which had, until then, prescribed the effective rates of duties for all goods. All these three Notifications are worded similarly and have tables with similar columns viz., S. No., Chapter heading or sub-heading, description of goods, standard rate, additional duty rates and condition no. against each entry where the exemption is subject to a condition, the condition number is indicated and the conditions under each S. No. were described at the end. 86. Copies of the Notification submitted in the synopsis before us by the parties are from private publishers. We have examined the three exemption Notifications from the website of the Central Board of Indirect Taxes and Customs. The extracts of the three Notifications relevant to answer this question read as follows: Notification No. 1....
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.... Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance ( Department of Revenue), No.17/2001-Customs, dated the 1st March, 2001[ G.S.R. 116EUR dated the 1st March, 2001, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading or sub-heading of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; (b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in column (5) of the said Table, subje....
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....the 1st day of April, 2002 . Explanation.- For the purposes of this notification, the rate specified in column (4) or column (5) is ad valorem rate, unless otherwise specified. S. No. Chapter or Heading or Sub-heading or tariff item Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) 87. We find that the three Notifications are similarly worded and the Columns in the Table are also same. In all the three Notifications, the first clause (clause 1 of Notification No. 17/2001 and clause 'a' of Notification No. 21/2002 and Notification No. 12/2012) ends with a semi-colon ';' and the second clause (clause 2 of Notification No. 17/2001 and clause 'b' of Notification No. 21/2002 and Notification No. 12/2012) end with a 'comma' and the expression "subject to any of the conditions, specified in the Annexure to this notification, the condition No. of which is mentioned in the corresponding entry in column (6) of the said Table" is in the next line in the Notifications uploaded on the CBIC website. However, while there was a gap of an extra line between the second clause and this expressi....
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....he penalties imposed on Manish and Chirag. 90. We have considered the submissions advanced by both sides on this issue. Section 114AA reads as follows: "Penalty for use of false and incorrect material. - If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods." 91. Nothing in the section confines its application to only mis-declarations in exports. Evidently, it applies to both imports and exports. In this case, in the Bills of Entry filed by Prestige, a wrong exemption Notification was claimed which it was not entitled to because on the very face of the Notification, it is clear that it is subject to a condition of the imported goods being used for manufacture following a procedure. Neither Prestige nor its buyers had any manufacturing facilities, let alone, manufacturing goods after following the proper procedure. However, no facts were mis-declared in the Bills of Entry. Therefore, penalty und....
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....of Entry. h) Demand of duty under section 28 of the Customs Act must be issued to the person who is required to pay the duty. Since Prestige paid the duty it is also responsible to pay any duty short paid. i) Neither any provision of SEZ Act nor any provision of Customs Act excludes the jurisdiction of the Commissioner of Customs under section 28 in respect of the goods sold from an SEZ unit in DTA. There is therefore, no force in the submission of the learned counsel that the Commissioner of Customs lacked jurisdiction to adjudicate the matter and to issue a notice under section 28 of the Customs Act. j) The Commissioner had, in the impugned order, confirmed demand under section 28(4) of the Customs Act while the SCN was issued under the proviso to section 28(1) of the Customs Act which was the erstwhile provision to invoke extended period of limitation in issuing the SCN. Quoting any wrong provision or erstwhile provision in the SCN does not vitiate the SCN or the consequent proceedings. k) The exemption at S. No. 432 of Notification No. 12/2012- Cus, as amended, was available both on basic customs duty and additional duty of customs subject to....