TaxTMI 
TaxTMI 
2024 (5) TMI 1587
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....ject to furnishing of Bank Guarantee / Letter of Undertaking for payment of customs duty for the amount as may be prescribed by the nominated agencies. On failure to effect exports within the time prescribed, the nominated agencies will enforce the Bank Guarantee / Letter of Undertaking. 2. The 1st petitioner bought a certain quantity of imported gold bullion (free of duty) from one of the nominated agencies namely M/s. Bank of India, Bullion Branch, Chennai. Certain gold ornaments manufactured by the 1st petitioner and in respect of which the 1st petitioner had filed a shipping bill bearing No.7996621 on 14-08-2017 were intercepted by the Customs authorities. It was found that the purity of gold and the weight of the gold contained in the jewellery intended for export was much less than the stated quantity mainly on account of the lesser purity and weight of stones and other materials used in the manufacture of the jewellery. Following the investigation and after recording statements from various persons including the 2nd petitioner, Exts.P1 and P2 show cause notices were issued not only in respect of the consignment which had been intercepted but also in respect of gold orname....
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....said period. If stay application is so filed, then the Commissioner (Appeals) before whom the appeals are filed, shall take up the appeals and either dispose of the same or at least the stay petition, within a period of one month. The parties shall co-operate to get the matter heard finally or at least the stay application. If the consideration is not made as directed herein within a period of one month, then again, there shall be release of the gold seized by the Department based on Ext.P1 order. Needless to say that if the appeal of the Department is rejected or the stay application is dismissed, then necessarily, the gold would have to be released to the appellant. The appellant shall produce certified copy of this judgment before the first appellate authority for compliance." 3. In the meanwhile, on 27-06-2018, the petitioners preferred separate appeals against Exts.P3 and P4 orders of the adjudicating authority. The appeals (numbered as Appeal Nos. 44 to 47/2018-19) preferred by the petitioners were dismissed by the First Appellate Authority by Ext.P7 order finding that the appeals were barred by limitation. The appeals preferred by the Department were decided by the Appell....
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....ioner v. R.R. Enterprises; 2015 (318) E.L.TA263 (AP) and that the decision of the Calcutta Bench of the Tribunal in Shalimar Paints (supra) has been affirmed by the Supreme Court in the decision reported as Commissioner v. Shalimar Paints Ltd; 2002 (145) E.L.T A242 (S.C). On the question of delay leading to the dismissal of the appeals filed by the petitioners against Exts.P3 and P4 orders, it is submitted that considering the date of Exts.P3 and P4 orders, the 60 days time limit for filing an appeal expired on 26-05-2018. It is submitted that the Commissioner (Appeals) could condone delay up to a maximum period of 30 days from 26-05-2018 and therefore, the condonable period was till 25-06-2018. It is submitted that the appeals were admittedly filed by the petitioners on 27-06-2018 (with a delay of two days) and considering the fact that the 1st petitioner was before this Court by filing W.P.(C) No. 19102/2018 (seeking implementation of Exts.P3 and P4 orders of the adjudicating authority) and that Writ Petition was disposed of only on 29-06-2018, the period during which that writ petition was pending in this Court namely from 08-06-2018 till 29-06-2018 must be excluded for the p....
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.... during which W.P (C) No.19102/2018 was pending before this court must be excluded for the purposes of determining the period of limitation within which the petitioners had to file appeals against Exts.P3 and P4 orders of adjudication. 6. Having heard the learned Senior Counsel appearing for the petitioners and the learned Standing Counsel appearing for the respondents, I am of the view that Exts.P7 and P8 orders must be set aside and the appeals leading up to those orders must be restored to the file of the Commissioner (Appeals) for fresh consideration. The reasons which compel me to hold so are the following; (A) It is seen from Ext.P3 order that the question as to whether any proceedings can be initiated and penalty can be imposed in respect of the goods covered by 71 shipping bills which were already exported was specifically raised. However, it does not appear from a reading of Ext.P8 order that this issue has been adverted to by the Appellate Authority. In Syed Irfan Mohammed (supra) a Division bench of the Andhra Pradesh High Court held as follows:- "12. It is seen from the Orders-in-Original that the discussion relating to the past containers, start fr....
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....s as argued by Sri Azmathulla, the total weight of the goods consisting of 825 cartons of Diapers should be around 10000 kgs. However the declared weight was around 6 tons only. Even in respect of the two containers which consisted of more than 600 cartons of Cigarettes the Cargo Weight was declared as 6225 kgs only. Further, out of the two containers that were examined one container consisted of 610 cartons of cigarettes and the other container consisted of 709 cartons of Cigarettes. However, the declared weight is exactly 6225 kgs in respect of both the containers. Thus, it is clear that there is gross mis-declaration of the weight in respect of all the containers. Thus the weight factor cannot be basis to argue that the past containers consisted only Diapers......." 16. If the 2nd respondent had come to the conclusion that the past containers could have also contained the cigarettes, on the basis of the weight of a particular quantity of cigarettes and the weight of a particular quantity of baby diapers, the 2nd respondent could have at least been credited with some arithmetical logic. But the 2nd respondent rejected the issue of weight factor as though it had nothing t....
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....pproach a cigarette package more than half of the container should be de stuffed. In the realm of self assessment, where more reliance is placed on the importers self declaration, it is not feasible to de-stuff half of every container. Such action would be resorted only when there is some doubt regarding the cargo. In the impugned case, the notices have conspired in such a way that there is no scope for suspecting that the container consisted of cigarettes. Such a deep rooted conspiracy cannot be detected in a routine examination of goods. Even for a specialized Investigating Agency like DRI, it took such a considerable time to unearth the conspiracy. Thus just because no cigarettes could be detected during the course of examination of the goods, it cannot be concluded that the containers consisted of only Diapers. 20. But the conclusion drawn by the 2nd respondent, which we have extracted above, is in the realm of speculation. The same cannot be permitted in view of the fact that different officers had examined the past containers at different points of time. Therefore, the theory of conspiracy floated by the 2nd respondent, unless it takes into account the role played by....
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.... 25. Today if the different Proper Officers who cleared the 13 containers in the past were summoned and examined, even they will not support the case of the Department, for the fear of disciplinary proceedings being initiated against them. Therefore, we do not think that the 2nd respondent could have invoked the jurisdiction under Section 2* (4) in respect of the past containers. If this is permitted, it would become a matter of surmises for any officer to claim that some goods could have been smuggled into the country by concealing them behind the goods that were declared to be the goods of import in the Bills of Entry. Hence, the Orders-in-Original impugned in these writ petitions are liable to be set aside only insofar as they impose a duty, interest and penalty in respect of the past 13 containers. 26. Accordingly, both the writ petitions are allowed to the limited extent of setting aside paragraph 186.II(2) and 186.III(2). Insofar as all other matters are concerned, the petitioners will have to avail the alternative remedies available to them in law. The miscellaneous petitions, if any, pending in these writ petitions shall stand closed. No costs." While on ....