TaxTMI 
TaxTMI 
2025 (3) TMI 15
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....egal 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 Kapoor (vi) I impose a penalty of Rs. 10,00,000/- on notice no. 3 under section 114AA....
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....uch 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; (iv) The Commissioner had no jurisdiction to confirm demand under section 28(4) of the Customs Act because the SCN was issued under section 28(1) and no corrige....
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.... 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. (iv) SEZ Rule 25 also provides that if the entrepreneur or developer does not utilise the goods or services on which exemptions, drawbacks and concessions have been availed for the authorised operations or is unable to duly account for the same, the entrepreneur or developer, as the case may be,....
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....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 outside the customs territory of India and also as the Customs port/airport/ ICD, etc. It reads as follows: Section 53. Special Economic Zones to be ports, airports, inland container depots, land stations, etc., in certain cases. (1) A Special Economic Zone shall, on and from the appointed day, be deemed to be a territory outside the customs territory of ....
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....ns 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 activities are not related to the authorised operations, then SEZ is not deemed to be 'outside the customs territory of India' even as per section 53 of the SEZ Act. 18. Section 51 of the SEZ Act overrides any contrary provisions in the other laws. It reads as follows: Section 51. Act to have overriding effect. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in ....
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....s 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 operations in a Special Economic Zone; (f) exemption from the securities transaction tax leviable under section 98 of the Finance (No. 2) Act, 2004 (23 of 2004) in case the taxable securities transactions are entered into by a non-resident through the International Financial Services Centre; (g) exemption from the levy of taxes on the sale or purchase of goods other than newspapers under the Central Sales Tax Act, 1956 (74 of 1956) if such goods are meant to carry on the authorised operations by the Developer or entrepreneu....
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....equires- (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 matters relating to authorised operations under the Special Economic Zones, 2005, transactions, and goods and services related thereto, shall be made by the Jurisdictional Customs and Central Excise Authorities in accordance with the relevant provisions contained in the Customs Act, 1962, the Central Excise Act, 1944, and the Finance Act, 1994 and the rules made thereunder or the notifications issued there under. 27. We also find that learned Special Counsel for the Revenue is correct in his submission that SEZ Rule 25 requires the entrepreneur to refund an amount equal to the benefits of ex....
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....ment 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 empowered under Section 28." 33. Therefore, 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 lacks jurisdiction to adjudicate the matter and to issue a notice under section 28. Issue 2: Jurisdiction of the Additional Commissioner to issue a notice under section 28 in a matter where the sale was under section 30 of the SEZ Act 34. Learned counsel also contested the jurisdiction o....
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....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 interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words 'one year' and 'six months', the words 'five years' were substituted: Explanation. -Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or six months or five years, as the case may be. After 8.4.2011 Section 28. R....
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.... 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 to section 28(1) before the amendment] as these provisions only enlarge the period of limitation period and do not stipulate that demand under them cannot be issued within the normal period. Clearly, the allegation in the SCN in this case is that one of these elements was present although the entire period of limitation was within the normal period of limitation. 41. The SCN was clearly not issued under section 28(1) as asserted by the learned counsel but was issued under the proviso to section 28(1). Instead of quoting the amended provision of section 28(4) in the SCN, the Additional Commissioner quoted the unamended provision [proviso to section 28(1)]. In the impugned order, the Commissioner quoted correctly the amended provision of section 28(4). 42. The question which arises is if the a....
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....ncorrect 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 PRADYUMNA STEEL LTD. [1996 (82) E.L.T. 441 (S.C.)] and held as follows: 3. It is settled that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. Thus, there is a clear error apparent on the face of the Tribunal's order dated 23-6-1987. Rejection of the application for rectification by the Tribunal was, therefore, contrary to law. 4. The impugned order of the Tribunal dated 21-12-1989 rejecting the Department's application is, therefore, set aside. This results in the Department's application for rectification being allowed, with the consequence that the main order dated 23-6-1987 passed by the Tribunal is also set aside. The Tribunal would now proceed to decid....
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....6. 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 issue a notice, the fact that, the notice refers specifically to a particular rule, which may not be applicable, will not make the notice invalid. Similar view is expressed by the Supreme Court in Pradyumna Steel Ltd.(supra) where it holds that, mere mention of a wrong provision of law when the power exercised is available, even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. In the facts of the present case, the petitioner invited the authorities to invoke the provisions of the Regulations of 2013 at the time of hearing, despite the notice to show cause being issued under the provisions of the Regulations of 2004. It should not be allowed to approbate and reprobate on the applicability of the Regulations. Be that as it may, the authorities did have the power to pass the impugned order in the manner and to the e....
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....ion 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 invoking extended period of limitation under section 28(4). 50. Learned special counsel, on the other hand, submitted that Prestige had, deliberately and with intention, availed the benefit of Notification No. 12/2012 purportedly for manufacturing televisions using the imported goods but they had not even the facilities to manufacture televisions and Prestige had, undisputedly, not manufactured any goods and simply sold the imported goods to other traders in the Domestic Tariff Area. The following facts would, according to the learned special counsel, establish that Prestige had no intention of manufacturing the goods and only imported the goods into SEZ and cleared them to DTA: (a) The letter of authorisation was issued to Prestige on 12.1.2016 and 'manufacture' was included in it on 18.2.2016; (b) on 3.3.2016, Prestige imported goods under two Bills of Entry and immediat....
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....o 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 them to another trader in DTA. The wilful misstatement or suppression of facts with an intention to evade can only be inferred from the circumstances and we find it in the facts of this case. We, therefore, find in favour of the Revenue and against Prestige on the question of confirming demand under section 28(4). Issue 6: Misconstruction/ misinterpretation of the provision of the notification does not amount to suppression of fact and misstatement for imposition of penalty under section 114AA of the Customs Act 56. Learned counsel submitted that even if Prestige had mis-constructed or misinterpreted the provision of the notification, it does not amount to suppression of fact and misstatement for imposition of penalty under section 114AA of the Customs Act. To examine this submission, it is necessary to examine this section and it reads as follows: 114AA. Penalty for use of false and incorrect material.-If a person knowing....
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....s 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 "produced or manufactured in" with the words "cleared from" 59. It is the submission of the learned counsel for the appellants that Prestige was not required to pay Special Additional Duty (SAD) of Customs on the goods which it had cleared because it was exempted by Notification No. 45/2005 -Cus dated 16.5.2005 as amended by Notification No. 18/2011-Cus dated 1.3.2011. 60. We have considered this submission. The Notification reads as follows: NOTIFICATION NO. 45/2005-CUS., DATED 16-5-2005 AS AMENDED BY NOTIFICATIONS NO. 16/2007-CUS., DATED 21-2-2007; NO. 19/2007-CUS., DATED 27-2-2007; NO. 18/2011-CUS., DATED 1-3-2011 In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all goods cleared from a special economic zone and brought to any other place in India in accordance with the prov....
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....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 from the SEZ unit to the DTA. 66. Section 30 of SEZ Act deals with the domestic clearance of goods by SEZ units and it also empowers the Central Government to make rules for the purpose. Chapter V (Rules 47 to 52) of the SEZ Rules specify the conditions subject to 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. 67. In this case, not only were the Bills of Entry were filed by Prestige but even the duty was assessed and paid by it and not by the buyer. The Bills of Entry indicate the names of the buyers as the importers but the sale of goods took place only after the goods were cleared by Prestige and sold to the buyers at the buyers' place. Two questions which arise in this case are: a) who is responsible to pay the duty and if th....
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....oms at their places neither filed the Bills of Entry nor paid the duty. They bought them from Prestige after they were cleared and the sale took place at their premises. Therefore, if Prestige short paid any duty and cleared the goods, such short paid duty can only be demanded from Prestige and not from the entities to which it had, after clearing them, sold the goods. 70. It is also the submission of the learned counsel that the role of Prestige in the transaction is that of an exporter and import duty cannot be charged from it and that the Bills of Entry were only filed by Prestige on behalf of the buyers. This argument appears attractive but on a little analysis of the facts, is without any force. It would have been a different case if Prestige had only filed the Bills of Entry on behalf of its buyers. In this case, Prestige also paid the duty and cleared the goods and continued to be the owner of the goods until they were sold, after clearance to the DTA at the premises of the buyers. The terms 'import', 'imported goods' and 'importer' were defined during the relevant period, in section 2 of the Customs Act as follows: (23) "import", with its grammatical variatio....
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....there will be no sale, import does take place and such an entity will be both the exporter and the importer. Any confusion about this position will be cleared if it is kept in mind that duties of Customs are levied on the act of importation or the act of exportation and not on the sale itself. It is for this reason, even when there is no sale, the person who brings the goods into India is liable to pay import duty. 73. In the facts of this case, in respect of the DTA Bills of Entry, Prestige was not only the exporter but was also, for the reasons stated before, the importer. The demand of duty short paid by Prestige can only be made from Prestige by issuing a notice under section 28. 74. The case laws relied upon by the learned counsel are clearly distinguishable on facts and the questions involved in them. In the case of Essar Steel, the department wanted to charge export duty on the goods supplied to the SEZ area from DTA area. It was undisputed that export duty was chargeable had the goods been exported but they were not actually exported, i.e., taken outside India but were supplied to SEZ area. Therefore, according to Essar Steel, it was not required to pay export duty becaus....
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....r Advait Steel Rolling Mills applies to this appeal because there is no dispute that import duty was payable on the goods cleared from SEZ units to DTA (because the goods are brought into India) and Prestige had also paid the duty. The dispute is only if the duty was short paid. 78. In the case of GMR Aerospace, the petitioners assailed the Order in Original passed by the Commissioner demanding service tax on the services provided to the SEZ units on the ground that section 26(1)(e) of the SEZ Act, no service tax was payable and this provision of the SEZ Act prevails over other laws. The respondent UOI mainly opposed the writ petition on the ground that alternative remedies were available. Allowing the Writ Petition, the High Court of Andhra Pradesh, quashed the order in original. The SLP filed by the Union of India against the judgment of the High Court was dismissed by the Supreme Court. 79. This judgment also does not advance the case of Prestige before us because the question is not about taxability of services rendered within the SEZ unit but is about the short payment of duty of the goods cleared to DTA. There is no dispute that duty was payable if the goods are cleared fro....
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....l display) and LED (Light Emitting Diode) TV Panels of 20 inches and above Nil - 5 Condition No. Conditions 5. If the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996. 81. The submission of the learned counsel for Prestige is that the Notification would show that it exempted unconditionally the goods listed at S.No.432 of the table from the whole of customs leviable thereon under the said First Schedule, which is also known as Basic Customs Duty or BCD, as is in excess of NIL and it also exempts the goods from additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act 1975 subject to the condition specified in column 6, i.e., condition no. 5. Learned counsel does not assert that condition no. 5 was fulfilled. It is her submission that this condition had to be fulfilled only to avail exemption from additional duty of customs and did not have to be fulfilled to claim exemption from basic customs duty. It is also her submission that Prestige had paid the additional duty of customs. It is also her submission that the Commissione....
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...., SUB-SECTION (i)] GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) Notification No.12 /2012 -Customs New Delhi, dated the 17th March, 2012 G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 25of the Customs 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. 21/2002-Customs, dated the 1st March, 2002 Published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 118EUR dated the 1st March, 2002, except as respects things done or omitted to be done before such supersession, 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, 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 s....
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....tion shall apply to - a) the goods specified against serial Nos. 239, 240, 241 and 242 of the said Table on or after the 1st day of April, 2003 ; b) the goods specified against serial Nos. 250, 251 , 252 and 415 of the said Table on or after the 1st day of March, 2005 . 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) Notification no. 17/2001 Notification No. 17/ 2001-Customs 1 March 2001 In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), 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 No. or sub-heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specif....
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.... of customs. This is the root cause of confusion and the argument of the learned counsel that the condition had to be fulfilled only to avail the benefit of exemption from additional duty and the basic customs duty is fully exempt is clearly not the correct interpretation of the Notification. Even if the extra line space is not left between the second clause and the clause pertaining to the condition, the condition clearly is intended to apply to both the basic customs duty and the additional duty of customs. This has been the pattern in all the three exemptions which cover hundreds of types of goods listed in the tables. The ambiguity in Notification No. 12/2012-Cus created by lack of an extra line space between the second clause and the clause pertaining to the condition must be interpreted in favour of the Revenue. It is held by the Constitution Bench of Supreme Court in Commissioner of Customs (Import), Mumbai versus Dilip Kumar and Company [2018 (361) E.L.T. 577 (S.C.)] that in case of any ambiguity in a Notification, it should be interpreted in favour of the Revenue and against the assessee. In this case, the ambiguity is only on account of typographical mistake in not leavin....
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.... operations which the developer or entrepreneur is authorised to carry out in the SEZ. If the activities are not related to the authorised operations, then SEZ is not deemed to be 'outside the customs territory of India' as per section 53 of the SEZ Act. c) Section 53 of the SEZ Act also declares the SEZ to be a Customs port, airport or land customs station. d) Customs Act applies not only to the whole of India but to also to any offence or contravention thereunder committed outside India by any person. Therefore, even if an offence is committed in the SEZ Area which is deemed to be outside the customs territory of India the provisions of the Customs Act would apply to such offences as well with the rider that if there is also any provision on that offence in the SEZ Act, the provision of SEZ Act prevails over the provision of the Customs Act. e) Section 51 of SEZ Act does not negate all laws of the land within the SEZ; only to the extent there is any inconsistency between the SEZ Act and other laws, by virtue of section 51, SEZ Act overrides other laws. If the other laws are not inconsistent with SEZ Act, they will continue to be operational. f) The goods which are cle....