TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 614
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....ppellant had claimed exemption from payment of Anti Dumping Duty (herein after 'ADD'), @ USD 4.77 per kg as stipulated under S. No. 7 of Notification No. 81/2009-Cus dated 13.7.2009 for the said imported goods. Directorate of Revenue Intelligence, Tuticorin (herein after 'DRI'), allegedly received information that 'the importer' was evading ADD, by declaring a rate less than the bench mark rate of 5.20 USD/Kg fixed for such imports under Sl. No.25 of the notification 81/2009 Cus dated 13.07.2009. Investigation allegedly revealed that the producer-manufacturer of the said imported goods were from China and the exporter-supplier was from Singapore and hence it appeared that the appellant is not eligible for ADD at USD 4.77 per kg and they are liable to pay ADD at USD 5.20 per kg. The Ld. Original Authority rejected the ADD at USD 4.77 per kg and redetermined the ADD at USD 5.20 per kg and demanded differential ADD of Rs.7,17,199/- with interest and imposed penalty under sec. 114A of the Customs Act, 1962. On appeal, the Commissioner (Appeals) vide Order in Appeal No. 04/2013-TTN (CUS) dated 28.1.2013 remanded the matter with a direction to grant adequate perso....
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....T. LTD., [REVIEW PETITION NO. 400 OF 2021 IN CIVIL APPEAL NO. 1827 OF 2018, Dated: 07.11. 2024 / 2024 (11) TMI 391 - SUPREME COURT (LB)], has decided the controversy regarding the jurisdiction of DRI to issue SCN's under Section 28 in favour of DRI. Further ever under the pre-self-assessment regime the importer was expected to give a true declaration of facts in the Bill of Entry and hence the charge of suppression of facts will sustain. Non mention or an error in mentioning the correct section in the SCN cannot lead to the charges being dropped. He further reiterated the points given in the impugned order and prayed that the appeal may be rejected. 5. Having heard the rival contentions, perusing the record and after going through the relevant case law relied upon by the parties, the issues raised by the rival parties are examined below. 5.1 I take up the issue regarding jurisdiction of the DRI to issue SCN first, since a SCN issued without proper jurisdiction would be a nullity and the issue on merits would not survive. I find that the Hon'ble Supreme Court in its judgment on the review petition in the case of COMMISSIONER OF CUSTOMS Vs M/S CANON INDIA PVT. LTD. (supra), held th....
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....1 demanding the differential ADD under Section 28(1) without invoking the proviso for the larger period of limitation, is not correct, thereby traversing beyond the scope of the show cause notice and on this score alone, the impugned order deserves to be set aside in its entirety, with consequential relief to the appellants." The said issues have been listed at para 3 and are taken up for consideration below. In this I am guided by the judgment of the Hon'ble Supreme Court in Bachhaj Nahar Vs Nilima Mandal & Ors [AIR 2009 SUPREME COURT 1103 / 2008 (15) SCALE 158], relevant portion of which is reproduced below; "8. . . (i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court. (ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a....
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....ppression may manifest itself in misrepresentation also. In the present case, the misrepresentation became suppression, as the exemption benefit or preferential duty benefit was obtained by putting forth wrong facts, which did not constitute eligibility to earn the exemption from the Basic Customs Duty. By suggesting wrong details and by subscribing untruth, essential conditions regarding RVC was not fulfilled. It partook suppression in eye of law and within the meaning of sub-section (4) of Section 28." (Emphasis supplied) Hence, I find that it was due to an admitted suppression of facts by the appellant, that the proper officer arrived at a wrong assessment and hence this plea of the appellant is rejected. The judgment of the Hon'ble High Court of Punjab and Haryana cited by the appellant in Commissioner of Customs, Amritsar Vs Jyoti Industries [2007 (209) ELT 180 (P&H), relates to an issue where it concurred with the Tribunal's, conclusion that in the case where there is a mistake on the part of Customs Officer in proper assessment of the goods, the respondents cannot be held liable for any suppression of facts as they have neither colluded or suppressed the facts. The issue i....
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....rted to them by a Singapore firm. Section 58 of the Indian Evidence Act, 1872 as it stood at the relevant time, states that a fact does not need to be proved in any proceeding if the parties or their agents admit it, or if it is admitted by writing under their hands before the hearing, or if it is deemed to have been admitted by their pleadings under any rule of pleading in force at the time. The principle behind this section is that a court only decides disputed facts, so facts that are not in dispute need not be proved. 9.2 The appellant has not pleaded that the statement was retracted. Even in the case of retraction, it is for the person who claims retraction to prove that the statement was made under force, duress, coercion etc. [See K.P Abudul Majeed Vs. Commissioner of Customs [2014 (309) ELT 671 (Ker)]; Surjeet Singh Chhabra Vs. UOI [1997 (89) ELT 646 (SC)]; K.I. Pavuny Vs. Assistant Collector (HQ), Cochin [(1997) 3 SCC 721] Further as observed by the Hon'ble Apex Court in Avadh Kishore Das Vs Ram Gopal and Ors. [AIR (1979) SC 861], Section 31 of the Indian Evidence Act, 1872 establishes that evidentiary admissions, while not conclusive proof, create an estoppel and shift t....
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....osed by the Original Authority. 11. Before parting with the matter, I would like to state, with some anguish, that the Appeal Memorandum contained language which shows a lack of respect / disrespect, for the First Appellate Authority and also contained unsolicited advice to the Tribunal on the mode of disposal of the dispute. While an erroneous statement may inadvertently creep into a pleading, it cannot happen repeatedly. The expression of disrespect or advice has no place in an appeal memorandum or pleading. Some portions of the Appeal Memorandum are reproduced below as an illustration; "The appellants with a great sense of responsibility submit that it appears that the Lower Appellate Authority does not have even the rudimentary knowledge of Customs Law and the adjudication process and it is because of such lack of knowledge that Lower Appellate Authority has passed the order under challenge and on this score alone the order under challenge deserves to be set aside in its entirety, with consequential relief to the appellants." "The appellants therefore submit that the order of the Lower Appellate Authority is perverse and unbecoming of the Appellate Authority and on this sc....
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....f to facts which bear proof? If it is a case of his own prestige and duty, is that clear in law and in fact ? Is it a borderline case where no opinions may be possible? Is it not better to avoid even such situations unless professional duty is imperative? Is he serving the interests of the administration of justice by his act or is it merely to satisfy his own ego, bias or personal satisfaction? Is the public benefited by his stand? Unless a lawyer gets a clear answer from his conscience satisfying these questions, which are illustrative and not exhaustive, he should not proceed further in pursuit of those allegations which either he or his client intends to make against a Judge. The ingenious mind of a lawyer ponder over more possibilities of this type in a broad sphere to come to the conclusion whether he should take up or proceed with such a case, in which he is asked to appear by his client. Unhappiness of a lawyer with a Judge or lack of cordiality in relations between him and a judicial officer should not be permitted to have an upper hand to influence the mind of a legal attorney in such cases. The Advocates are the officers of the Court. It is one of their functions to main....