TaxTMI 
TaxTMI 
TaxTMI 
2026 (1) TMI 1174
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....reement between the Governments of Member States of the ASEAN and the Republic of India by way of mis-declaring the country of origin, therefore, the investigation was conducted. On the basis of the investigation, it was revealed the modus operandi of the appellants, whereby, it was found that the bicycles parts of China origin were routed through Malaysia port to avail wrongly the benefit of exemption notification issued under Preferential Trade Agreement which was admitted by the appellants; therefore, the show cause notices were issued and adjudicated on the basis of documents recovered and statements recorded during the course of investigation. The impugned demand were confirmed along with interest. A redemption fine was also imposed on provisionally released goods. In view of confiscation, penalties were imposed on both the appellants. Against the said order, the appellants are before us. 3.1 The ld. Counsel for the appellants submitted that the impugned order is not sustainable in the eyes of law as in this case, the show cause notices were issued on 07.10.2016, whereas adjudication has taken place on 28.05.2019 as per amended explanation 4 to Section 28 of the Customs Act....
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.... of examination order of each and every bill of entry, it would be gleaned that claim of exemption notification was duly examined prior to clearance of goods. The goods allowed to be cleared without disturbing the self-assessment made by the appellants which otherwise is re-assessment of the self-assessment made by the appellants. Therefore, the question arises that whether the Revenue at this stage can re-assess exemption claim when goods are no more imported goods. There is no provision permitting re-assessment of claim of exemption and there is only remedy of appeal with both the parties. The assessing authority cannot re-assess claim of exemption and in case of any grievance, he has right to file appeal which the Revenue failed to do so. Therefore, on this ground itself, the appeals are to be allowed and the impugned order is to be set aside. 3.4 He further submitted that the whole case is based upon the documents/conversations recovered from emails which were taken during the investigation but the provisions of Section 138C of the Act has not been followed. The printouts as document are admissible only if accompanied by certificate in terms of Section 138C of the Act obtain....
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.... of the Customs Act only on duty short paid by wrongly availing the exemption under Notification No. 46/2011-Cus dt. 01.06.2011. 4.3 He relied on the decision of Hon'ble Apex Court in the case of U.O.I. vs. Jain Shudh Vanaspati Ltd - 1996 (86) ELT 460 (SC) and on the decision of Hon'ble Madras High Court in the case of Venus Enterprises vs. C.C., Chennai - 2006 (199) ELT 405 (Mad.). He also relied on the decision of Hon'ble Apex Court in the case of C.C., Mumbai vs. Virgo Steels - 2002 (141) ELT 598 (SC) to say that the power of recovery duty which have escaped collection is a concomitant power arising out of levy of customs duty under Section 12 of the Act and same does not emanate from Section 28 of the Act and Section 28 only provided for procedure aspect for recovery of duty. 4.4 He further submitted that the well settled legal position is that demand of duty can be made under Section 28 without reviewing the assessment under Section 129(d) as has also been reiterated by this Tribunal in the case of Mahindra & Mahindra Ltd - 2014 (312) ELT 545 (Tri. Mumbai). 4.5 He further submitted that the relied upon documents i.e. emails which have been retrieved from web-based ema....
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....t 1962; and (iii) Whether in the absence of following the procedure prescribed under Section 138C of the Customs Act, 1962, the documents relied by the adjudicating authority are admissible or not? Issue (i) Whether the show cause notices issued on 07.10.2016 and adjudicated on 28.05.2019 shall stand vacated in terms of the explanation 4 to Section 28 of the Customs Act, 1962 or not? 7. To deal the issue, we have to see the provisions of Section 28 of the Customs Act, 1962 and explanation 4 w.e.f. 29.03.2018 which is as follows: "Un-amended Section 28 read as under: SECTION 28. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) Where any duty has not been levied or has been short-levied or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied....
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....en amended and a new Sub-section (9A) alongwith explanation 4 has been inserted. Amended provisions are reproduced as under- (9) The proper officer shall determine the amount of duty or interest under sub-section (8)- (a) within six months from the date of notice, in respect of cases falling under clause (a) of sub-section (1); (b) within one year from the date of notice, 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 un....
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....8. Admittedly, in this case the show cause notices have been issued on 07.10.2016; therefore, the said explanation is of no help for the appellants; but on this issue, the Hon'ble High Court of Punjab & Haryana, which is a jurisdictional high court, has dealt this issue in the case of M/s Harkaran Dass Vedpal (supra), wherein the Hon'ble High Court has observed as under: "14. From the bare perusal of the afore-quoted amended Subsection (9) and newly inserted (9A) of Section 28 w.e.f. 28.03.2018, it is evident that authorities are bound to pass order within one year from the date of Show Cause Notice in cases of Custom Duty not paid/short levied and said period may be extended for a further period of one year by any officer senior in rank to the proper officer having regard to the circumstances under which proper officer was prevented from passing an order before the expiry/lapse of the initial stipulated one year. Still further in case any circumstance as noticed in Sub-section (9A) exists, the extended period of one year provided in Sub Section 9 shall commence from the date when such reason ceases to exist provided the proper officer informs the person concerned of the r....
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....the dealer under sub section (3) of Section 11 of the Act and consideration of evidence produced, if any. However, the position was materially altered w.e.f. 03.03.1998 which provided that the assessing authority was required to pass an order of assessment on the basis of returns within a period of three years from the last date prescribed for furnishing the last return in respect of such return for both assessment of tax due under Sub Section (1) as well as sub section (3) of Section 11 of the PGST Act. It is also not dispute that the notices in the form ST XIV for the assessment years 1995-96 and 1996-97 were issued on 26.04.2001 and 21.04.2001 respectively. The assessment orders under Section11(3) assessing demand of tax for a sum of Rs.18,18,318/- and Rs.10,51,851/- for the respective assessment years was passed on 27.07.2001. Therefore it is not disputed that even if the three years period of limitation was to be computed w.e.f. 03.03.1998, the assessment orders for both the assessment years were beyond the period of limitation as per the amended provisions of Section 11(3) of the Act. It is also not disputed that the learned Tribunal has on consideration of the provi....
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....29.03.2018 on the principle of retroactive operation; still further there is nothing on record / to a pointed query to even suggest that the said period was ever extended by one year by any senior officer in terms of the first proviso to Sub Section (9) of amended Section 28. No notice under Sub-section (9A) has been served upon Petitioners by the proper officer seeking the deferment of the commencement of the initial one year notice period for the reasons stated in subsection (9A). By Amendment of 2018, the legislature has made it clear that no Show Cause Notice shall be kept pending beyond a period of 1 year by the proper officer unless and until requirement of Sub-section (9A) are complied with or beyond the extended period of another one year by an order passed by any officer senior in rank to the proper officer detailing the circumstances which prevented the proper officer from passing the order within the initial period of one year. In the present writ petitions, the Respondent-DRI issued Show Cause Notice on 20.02.2009 (P-6) & 19.03.2009 (P-9) for short levied custom duty and interest due to mis-declaration of description and value of goods relating to the two partnership fi....
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....rior to 29.03.2018. The show cause notice in the present case was issued on 22.06.2007 i.e. prior to 29.03.2018, thus it was governed by Section 28 of the Customs Act as it existed prior to 29.03.2018. Thus, the requirement of adjudication of show cause notice within one year, inserted w.e.f. 29.03.2018 is not applicable to present case and accordingly order dated 18.12.2019 deserves to be recalled and main petition deserves to be dismissed. 5. We have heard learned Counsel for the applicants/respondents Customs Department. 6. The main writ petition was disposed of in view of our judgment in the case of Harkaran Dass Vedpal (Supra). The Applicant has filed SLP before Hon'ble Supreme Court challenging order passed in the case of Harkaran Dass Vedpal (Supra). Recalling of our order dated 18.12.2019 in the present case would amount to recalling order passed in the case of Harkaran Dass Vedpal (Supra) which is already under challenge before Hon'ble Supreme Court. Thus, present application deserves to be dismissed on this ground. 7. The judgment in Harkaran Dass Vedpal (Supra) is based upon two grounds/issues and Applicant is disputing only one issue. If the c....
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....se notices issued prior to 28.03.2018 and the same have not been adjudicated within one year and no time limit for adjudication has been extended. Therefore, in the light of the decision of the Hon'ble High Court in the case of M/s Prabhat Fertilizers & Chemical Works (supra), we hold that the impugned show cause notices stand vacated, therefore, the impugned order deserves to be set aside. 12. Accordingly, we set aside the impugned order and allow the appeals filed by the appellants with consequential relief (if any). 13. As we have allowed the appeals of the appellants on the above issue no.(i) itself, therefore, we are keeping open the remaining issues for future reference. Ordered accordingly. Sd/- (ASHOK JINDAL) MEMBER (JUDICIAL) Separate order by (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) PER: SANJIV SRIVASTAVA MEMBER (TECHNICAL) I have gone through the order prepared by the learned Member (Judicial). However, even after long deliberation I am unable to agree with the same. In para 6 of the order learned brother has framed following three issues for consideration, - (i) Whether the show cause notices issued on 07.10.2016 and....
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....ply to the Show Cause Notice was filed. 12.09.2017 They have additionally deposited Rs 20,00,000/- towards the demand of differential duty, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 20.11.2017 They have additionally deposited Rs 20,00,00/- towards the demand of differential duty, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 20.12.2017 They have additionally deposited Rs 17,66,116/- towards the demand of differential duty, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 21.12.2017 They have additionally deposited Rs 7,63,017/- towards the demand of differential duty, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 26.10.2018 Principal Commissioner/ Commissioner Customs Ludhiana, is appointed as common adjudicating authority in the matter vide Notification No 22/2018-Cus (NT/CAA/DRI) 04.12.2018 Personal Hearing was fixed on 08.01.2019 08.01.2019 Record of Personal Hearing is reproduced "Sh. Ravinder Singh, Manager in case of M/s Gursam I....
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....t for personal hearing on 08.01.2019, when appellants sought time to collect documents from the DRI office Ludhiana. In absence of any reply and submissions from the appellants in the matter, the adjudicating authority was compelled to again fix the matter for personal hearing on 30.01.2019. Appellants had themselves again sought adjournment and matter was again fixed for personal hearing on 27.02.2019. On 27.02.2019 also the appellant counsel while reiterating the submissions made in the interim reply filed on 25.02.2019, sought further time of two weeks for making the final submissions, which was never filed. Only when the adjudicating authority again reminded and called the appellant to make the final submissions in the matter vide his letter dated 02.04.2019, appellants replied vide their letter dated 09.04.2019, stating as follows: "Sub: Request for adjudication. Ref: Show Cause Notice F No. DRI/LDZU/856/(ENQ-4)(INT1) 2016/2458 dated 07.10.2016 issued to M/s Gursam International. On, 27.02.2019, personal hearing in respect of above said show cause notice was attended by Shri Deepak Gupta, Advocate on the behalf of undersigned. During hearing the coun....
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....nation 4 was also inserted which is reproduced as under:- "Explanation 4: For the removal of doubts it is hereby declared that in cases where the notice has been issued for no-levy, not paid, short-levy or short paid or erroneous refund after the 14th day of May, 2015 but before the date on which the Finance Bill, 2018 received the assent of the President, they Shall continue to be governed by the provisions of section 28 as it stood immediately before the date on which such assent is received." 5.2 The issue under consideration of the Hon'ble High Court in case of GPI Textiles was not in the respect of the amended provisions but was the case, wherein unamended provisions as they existed prior to the amendments made by the Finance Act, 2018 was under consideration. In that case there was delay of more than 16 years in the adjudication of the matter, and Hon'ble High Court decided the issue holding that when there is no express time limit provided for adjudication of the Show Cause Notice, the adjudication proceedings should have been concluded within a reasonable period of time, and delay of 16 years in adjudication is not a reasonable period. For holding so they relied....
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....tial stipulated one year. Still further in case any circumstance as noticed in sub-section (9A) exists, the extended period of one year provided in sub-section (9) shall commence from the date when such reason ceases to exist provided the proper officer informs the person concerned of the reason for such non-determination of amount of duty or interest under sub-section 8. Thus the only outcome of non-adjudication by the proper officer within one year without invoking of subsection (9A) or within the extended period of one year, if any, by a senior officer in terms of the first proviso to sub-section (9) would be lapsing of notice, as provided in the second proviso to the sub-section (9) of the amended Section 28 of the 1962 Act. 15. The contention of the Counsel for the respondents that amended Section 28 is not applicable in the case of petitioners deserves to be rejected because amendment is not retrospective, but it is certainly retroactive. Mandatory limitation would be applicable treating pending show cause notice as if issued on 29-3-2018. The Division Bench judgment of this Court, cited by Counsel for the petitioner, in Ballarpur's case, dealt with Section ....
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....limitation was to be computed w.e.f. 3-3-1998, the assessment orders for both the assessment years were beyond the period of limitation as per the amended provisions of Section 11(3) of the Act. It is also not disputed that the Learned Tribunal has on consideration of the provisions of PGST Act and ratio of judgments of cited case law has upheld the contention of the petitioner dealer that the amended period of limitation provided under sub-section (3) being a piece of procedural law would be applicable to the pending cases like the present case. Learned Tribunal has also held that the assessments made by the assessing authority are not legally sustainable. It is also the admitted case of the State that the aforesaid findings of the Tribunal have not been challenged by the Sale Tax/Department/Revenue. Thus, we do not consider it necessary to go into the question as to whether the amended provisions of sub-section (1) and (3) of Section 11 providing a period of limitation would apply to the pending assessments for the years prior to 3-3-1998 or not as even if the amended provisions are made applicable prospectively and limitation of three years is assumed to commence w.e.f. 3-3-1998....
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....ng the order within the initial period of one year. In the present writ petitions, the respondent-DRI issued show cause notices on 20-2-2009 (P-6) & 19-3-2009 (P-9) for short-levied customs duty and interest due to misdeclaration of description and value of goods relating to the two partnership firms/petitioners and at that point of time the proper officer was required to pass an order within one year i.e. by 2010 where it was possible to do so. However after the Amendment w.e.f. 29-3-2018, the respondent was bound either to pass an order within one year i.e. by 28-32019 in terms of clause (b) of sub-section (9) of amended Section 28 or within the extended time of one year in terms of first proviso, which is concededly not the case at hand or the extended period in terms of requirement of sub-section (9A) which also is not the case at hand. Hence, the inevitable conclusion is that the show cause notices (P-6) and (P-9) in respective writ petitions will have to be accepted as lapsed." 5.4 Admittedly in the case of appellants the Show Cause Notice has been issued on 07.10.2016, and adjudicated on 28.05.2019 pursuant to appointment of Principal Commissioner/ Commissioner C....
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....e adjudication proceedings, so as per their decision in the case of the GPI Textiles, the relief as prayed for by the petitioners is admissible to them. They also referred to the amendments made to Section 28, as per Finance Act, 2018, and have by applying the principle of retroactivity, said that amended provision shall be applicable in that case and the show cause should have been adjudicated within one year of the enactment of the Finance Act, 2018. However as stated earlier the two show cause notices under consideration of the Hon'ble High Court in that case were dated 19.03.2009 and 20.02.2009 and were not covered by the expressed provisions of Explanation 4, referred above. This explanation has created a separate class of Show Cause Notices issued between 14.05.2015 to 29.03.2018 which would be governed by earlier provision of Section 28(9) before being amended. Hon'ble High court has not decided any issue where show cause notices was falling within this class as per Explanation 4, as introduced w.e.f. 29.03.2018, have been considered. Since the issue of the show cause notice issued during the period 14.05.2015 to 29.03.2018, was not even considered by the Hon'ble High Court ....
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....d by Finance Act, 2020 and as per amended Explanation 4, show cause notice issued prior to 29.3.2018 would be adjudicated as per law applicable prior to 29.3.2018. Hon'ble Punjab and Haryana High Court in Prabhat Fertilizer CWP No. 23433 of 2019 quashed show cause notice on the ground of non-adjudication within one year from 29.3.2018. The department filed CM No. 6352 of 2020 seeking recalling of order dated 18.12.2019 on the ground of amended explanation 4 of Section 28 of the Act. The Hon'ble High Court while dismissing review application vide order dated 27.7.2020 has clarified that amendment of Section 28(9) is not retrospective but retroactive and as per principles of retroactive, show cause notice issued prior to 29.3.2018 shall be deemed to be issued on 29.3.2018 and authority would be bound to adjudicate within one year from 29.3.2018. In the present case, show cause notice was issued on 7.10.2016 and was bound to be adjudicated by 29.3.2019 whereas impugned order was passed on 28.5.2019. The show cause notice dated 7.10.2016 stands vacated on 29.3.2019, thus impugned order is liable to be quashed on this sole ground." This order of Hon'ble High Court is in an ap....
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....vs Narayanan Nair [1995 (77) ELT 785 (SC)], Hon'ble Supreme Court has categorically laid down stating as follows:- "8. It is settled law that explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometime it would be added to include something within it or to exclude from the ambit of the main provision or condition or some words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambiguity in the same section." Hon'ble Supreme Court has in case of Kay Pan Fragrances Pvt Ltd [2019 (31) GSTL 385 (SC)], laid down the law stating as follows: "11. There is no reason why any other indulgence need be shown to the assessees, who happen to be the owners of the seized goods. They must take recourse to the mechanism already provided for in the Act and the Rules for release, on a provisional basis, upon execution of a bond and furnishing of a security, in such manner and of such quantum (even....
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....other provision of this Act or the rules or regulations made there under, or in any other law for the time being in force, in cases where notice has been issued for non-levy, short:-levy, non-payment, short payment or erroneous refund, prior to the 29th day of March, 2018, being the date of commencement of the Finance Act, 2018, such notice shall continue to be governed by the provisions of section 28 as it stood immediately before such date" The above referred explanation 4 substituted by the Finance Act, 2020, with effect from 29th March, 2018, is declaratory in nature and also starts with a "non obstante clause". Since the amended explanation is declaratory it is retrospective in operation. Further for the reason of use of non obstante clause the said declaration of law by the legislature will prevail over anything contrary contained in any judgement, decree or the Appellate Tribunal or any Court. Thus any declaration of the law by any court contrary to what has been stated by the legislature cannot be a valid declaration to the extent of declaration made by the legislature. 5.9 Hon'ble Supreme Court has in the case of Raghuvar India Ltd [2000 (118) ELT 311 (SC)] held as f....
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....od specified in the first proviso, the stay order, shall on the expiry of that period stand vacated." On the plain reading of the sub-section (2A), it is evident that in any case where tribunal has stayed the recovery of the duty, penalty etc., either partially or fully as per the Section 35F of the Central Excise Act, 1944 as it existed then, the appeal should be decided by the tribunal within a period of 180 days from the date of such an order granting the stay. In case the tribunal is not able to dispose of the appeal within period of 180 days the stay order shall stand vacated. The impact of the amendment was far reaching and would have serious impact on the functioning and the powers of tribunal to grant stay under section 35F. Some of the benches in the tribunal interpreted the amendment literally and strictly and others would interpret the same in a purposive manner. The matter was referred to larger bench in the case of IPCL [2004 (169) E.L.T. 267 (Tri. - LB)], and larger bench decided the matter holding as follows: "6. The observation of the Bench that if the Tribunal grants further extension of stay beyond the period of 180 days the amendment would become redu....
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.... express provisions in Sections 254 and 255 of the Act relating to stay of recovery during the pendency of an appeal, it must be held that no such power can be exercised by the Tribunal, suffers from a fundamental infirmity inasmuch as it assumes and proceeds on the premise that the statute confers such a power on the Income-tax Officer who can give the necessary relief to an assessee. The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the Appellate Tribunal. Indeed, the Tribunal has been given very wide powers under Section 254(1), for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal. If the Income-tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay of recovery, the entire purpose of the appeal can be defeated if ultimately orders of the departmental authorities are set aside......... It is a firmly established rule that an express grant of statutory power carries with it by necessary implications the authority to use all re....
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....s, Excise and Gold (Control) Appellate Tribunal has jurisdiction to issue interim orders. It may be pointed out here that Section 129B of the Act empowers the Customs, Excise and Gold (Control) Appellate Tribunal to confirm, modify or annul the decision or order appealed against. It is also open to it to remit the matter back for fresh adjudication. In addition to this, Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 specifically provides that the Tribunal may take such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. The words 'secure the ends of justice' are wide enough to clothe the Tribunal with powers to pass such interim orders, as it may deem fit in the facts and circumstances of the case. In addition to this, the power of Appellate Tribunal to confirm, modify or annul the decision or order appealed against also takes in its fold to pass such interim orders as are necessary in order to aid the main relief sought for in the appeal. To put it in other words, the interim relief is granted to preserve in stat....
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....ing the amendment." The issues which came up as a consequence of the insertion of sub-section (2A) to Section 35C were also raised before the Hon'ble Supreme Court and adjudicated by them in case of Kumar Cotton [2005 (180) E.L.T. 434 (S.C.)]. While adjudicating the issues the Hon'ble Apex Court held as follows: "3.The provision has clearly been made for the purpose of curbing the dilatory tactics of those assessees who, having got an interim order in their favour, seek to continue the interim order by delaying the disposal of the proceedings. Thus, depriving the revenue not only of the benefit of the assessed value but also a decision on points which may have impact on other pending matters. 4.The Tribunal which was then known as Customs, Excise Gold (Control) Appellate Tribunal (CEGAT) came to the conclusion that the amendment did not affect stay orders which were passed prior to the date of coming into force of the amendment and also held that the amendment did not in any way curtail the powers of the Tribunal to grant stay exceeding six months. 5.During the pendency of the appeal before this Court, the matter was referred to a Larger Bench of the T....
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....as per sub-section (8) to Section 28. Even if it is assumed that the adjudication proceedings were to be completed within one year from the date of amendment i.e. 28.03.2018, as have been held by the Hon'ble Punjab and Haryana High Court in case of Harkaran Das Vedpal, then also appellant needs to show that he has acted with clean intent of getting the matter adjudicated within one year from that date, by filing the reply within one month from that date. In my view no court or tribunal will be justified in directing the adjudicating authority to proceed in such a manner ignoring the principles of natural justice. In the present case adjudicating authority has in less than two months of the completion of the submissions and receiving the final reply from the noticee (appellant) adjudicated the matter. 5.12 Hon'ble Punjab and Haryana High Court has decided the case of Harkaran Das Vedpal, following their own decision in the case of GPI Textiles. Both in the case of GPI Textiles and Harkaran Das Vedpal, there was unreasonable and unexplained delay of more than fifteen years in undertaking the adjudication proceedings. Finding this delay of more than fifteen years in completing the ....
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....; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly" such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea. Reasonable time always depends on the circumstances of the case. (Kinney) It is unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return. (AIR 1930 Oudh 395). The expression "reasonable time" means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case". At this juncture, it would be appropriate to take note of the view expressed by this Court in several cases. In Firm Sriniwas Ram Kumar v. Mahabir Prasad and Ors., AIR (1951) SC 177 it was noted as follows : "As regards the other point, however, we are of the opinion that the decision ....
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....h the lower courts as well as by the Privy council. But the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under Section 65 of the Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and gave a decree on the ground that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellants even though the appeal was heard ex party in the absence of the respondent." In Sant Lal Jain v. Avtar Singh, [1985] 2 SCC 332 in paragraph 7 & 8 of the judgment it was observed as follows: "7. In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of s....
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....he has completed the adjudication proceedings on 28.05.2019, he cannot be said to have not completed the proceedings within reasonable time. In fact there taking the period of one year from the date of appointment of the present adjudicating authority as common adjudicating authority to adjudicate the show cause notices issued answerable to multiple authorities, the show cause notice has been adjudicated within one year as mandated by sub-section (8) to Section 28 as amended. Hence on both the counts of reasonable time, and also on the basis of the time prescribed as per sub-section (8) I do not find any merits in the submissions made by the counsel. In my view in facts and circumstances of this case the law as laid down by the Hon'ble Punjab and Haryana High Court in case of Harkaran Das Vedpal etc will not be applicable. 6.1 Since I am not in agreement with the learned brother for the dismissal of appeal on this first ground, I proceed to consider the other two questions of laws framed by the learned brother as referred above. 6.2 The next question which needs to be addressed is "Whether the show cause notice can be issued for recovery under Section 28 of the Customs Act, 1....
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.... alibi. Now the question arises that whether Respondent at this stage can reassess exemption claim when goods are no more imported goods. There is no provision permitting re-assessment of claim of exemption and there is only remedy of appeal with both the parties. The Assessing authority cannot reassess claim of exemption and in case of any grievance, he has right to file appeal which Respondents failed in the present case." 6.4 In contra learned authorized representative submitted stating as follow: "A. The appellant has adopted the ground that demand cannot be raised without re-assessment and that there is no machinery of re-assessment which is fallacious, erroneous and against the settled law. The importer fled Bills of Entry in contravention of Section 46(4) of Customs Act, 1962 read-with Section 17 and fraudulently obtained clearance under Section 47 ibid. It is pertinent to mention that the invoices were willfully created and used for self-assessment showing the bicycle parts to be of Malaysian origin so as to avail the benefit of the exemption notification issued under the Preferential Trade Agreement whereas they were of Chinese origin, which willfully resulted ....
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.... they apply in respect of goods not belonging to Government. Section 17 Assessment of duty. - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the self-assessment of such goods and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. (3) For verification of self-assessment under sub-section (2) the proper officer may require the importer, exporter or any other person to produce any contract, broker's note, insurance policy, catalogue or other document, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which is in his power to produce or furnish, any thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-....
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....duty or interest, may pay before service of notice under clause (a) on the basis of,- (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under section 28AA or the amount of interest which has not been so paid or part-paid. Provided that the proper officer shall not serve such show cause notice, where the amount involved is less than rupees one hundred. (2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (1) shall inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest: Provided that where notice under clause (a) of sub-section (1) has been served and the proper officer is of the opinion that the amount of duty along with interest payable thereon under section 28AA or the amount of interest, as the case may be, as ....
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....this section, "relevant date" means,- (a) in a case where duty is not levied or not paid or short-levied or short-paid, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or reassessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest. Explanation 2. - For the removal of doubts, it is hereby declared that any non-levy, short-levy or erroneous refund before the date on which the Finance Bill, 2011 receives the assent of the President, shall continue to be governed by the provisions of section 28 as it stood immediately before the date on which such assent is received.] Explanation 3. - For the removal of doubts, it is hereby declared that the proceedings in respect of any case of non-levy, short-levy, non-payment, short-payment or erroneous refund where show cause notice has been issued under sub-section (1) or sub-sect....
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....h of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa. Section 47. Clearance of goods for home consumption. - (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption: Provided that such order may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria: (2) Where the importer fails to pay the; import duty, either in full or in part, within two days (excluding holidays) - (a) from the date on which the bill of ent....
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....notice under Section 28 and not with reference to the jurisdiction of the proper Officer under that Section. While the absence of notice may invalidate the procedure adopted by the proper Officer under the Act, it will not take away the jurisdiction of the Officer to initiate action for the purpose of recovery of duty escaped. This is because of the fact that the proper Officer does not derive his power to initiate proceedings for recovery of escaped duty from Section 28 of the Act. Such power is conferred on him by other provisions of the Act which mandate the proper Officer to collect the duty leviable. By a perusal of Chapter V of the Act in which Section 28 is found, it is seen that the charging Section which authorises the levy of customs duty is found in Section 12 of the Act. Section 17 contemplates the procedure for making an assessment in regard to duty payable while subsection (4) of Section 17 makes a provision to empower the proper Officer to reassess the imported goods for duty if it is found that the assessment made at the time of importation was based on incorrect or false information. Section 142 of the Act found in Chapter XVIII provides for actual recovery of sums....
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.... duty assessed is nil;" From the provision of Section 17 it is quite evident that the person who is seeking to clear the goods for home consumption upon the entry of goods for importation is required to file the Bill of Entry in the prescribed form manner self-assessing the duty due on these goods. On payment of the duty as assessed and after satisfying the proper officer that the duty as assessed has been paid along with the other charges due, the person seeking clearance of goods can clear the goods for home consumption consequent to the order of clearance of the goods made under Section 47 by the proper officer. Section 17 provides for the reassessment of duty as self-assessed by the person filing the Bill of Entry. It does not provide that such self-assessment needs to be done prior to the clearance of goods. Sub-section (3) provides that proper officer shall for causing the verification of the self-assessment made by the importer, call for any information, as provided by that section in relation to the goods imported. Sub-section (4) empowers the proper officer to reassess the goods and the duty due on these goods. Subsection (5) provides that in case the goods are re-asses....
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....ce to any assessment order under Section 17. The view that section 28, provides for the machinery provision to complete the assessment, is strengthened by the sub-section (11) to the Section 28, This sub-section specifically clothes all the persons appointed as officer of Customs, with the power of assessment under Section 17, for purpose of initiation of proceedings under this section. Learned counsel for appellant had during course of arguments relied upon the decision of Hon'ble Supreme Court in case of ITC Ltd [2019 (368) ELT 216 (SC)] to argue that once the goods have been cleared upon assessment made under section 17, then department should have filed an appeal before the concerned appellate authority, and should have got the assessment order set aside or modified before issuing the notice under Section 28. He also relied upon the decision of Hon'ble Punjab and Haryana High Court in the case of Jairath International 2019 (370) ELT 116 (P & H)] and submitted that once having permitted the clearance of the goods on the basis of self-assessment made by the appellants department do not have power to reassess the goods subsequent to the order of clearance made under Section 47, an....
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....igencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re-assessment is not permitted nor conditions of exemption can be adjudicated. Re-assessment is permitted only under Section 17(3)(4) and (5) of the amended provisions. Similar was the position prior to the amendment. It will virtually amount to an order of assessment or re-assessment in case the Assistant Commissioner or Deputy Commissioner of Customs while dealing with refund application is permitted to adjudicate upon the entire issue which cannot be done in the ken of the refund provisions under Section 27. In Hero Cycles Ltd. v. Union of India - 2009 (240) E.L.T. 490 (Bom.) though the High Court interfered to direct the entertainment of refund application of the duty paid under the mistake of law. However, it was observed that amendment to the original order of assessment is necessary as the relief for a refund of claim is not available as held by this Court in Priya Blue Industries Ltd. (supra)." When Hon'ble Apex Court itself observes that the proceedings of claim of refund under Section 27, are distinct from the assessment and reas....
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....thereunder commencing from the "relevant date"; "relevant date" is defined by sub-section (3) of Section 28 for the purpose of Section 28 to be the date on which the order for clearance of the goods has been made in a case where duty has not been levied; which is to say that the date upon which the permissible period begins to run is the date of the order under Section 47. The High Court was, therefore, in error in coming to the conclusion that no show cause notice under Section 28 could have been issued until and unless the order under Section 47 had been first revised under Section 130." 7.1 From the above decision of the Supreme Court it is clear that when there is a short levy or non-levy or short payment or non-payment or erroneous refund, show cause notice under Section 28 for recovery of duty can be issued and the proceedings are sustainable. A similar view was taken by this Tribunal in the case of Venus Enterprises cited supra wherein this Tribunal observed as follows : "We have gone through the records of the case carefully and heard both sides. The appellants imported certain items by filing 11 Bills of Entry. After assessment and clearance, certain inve....
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....en there are decisions by the Hon'ble Apex Court, the Hon'ble High Court of Madras and this Tribunal directly on the scope of Section 28 of the Customs Act itself, there is no need to refer to any decisions pertaining to Central Excise Act at all. Therefore, we reject the contention of the appellant that the show cause notices issued demanding duty short levied under Section 28 of the Customs Act, after assessment of the bills of entry is not valid in law. In other words, we uphold the right of the revenue to demand duty short levied or paid or not levied or paid or erroneously refunded under Section 28 of the Customs Act, 1962. Thus there is no infirmity or illegality in the instant case as far as demand of duty made under Section 28 ibid is concerned." 6.10 In view of the discussions as above we are not in agreement with the submissions made by the learned counsel for appellant and hold that the revenue had complete jurisdiction to proceed against the appellant in case of any non levy/ nonpayment or short levy/ short payment under section 28 of the Customs Act, 1962. Thus this question framed by the learned brother also is decided in favour of the revenue and against the appel....
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....ails have been retrieved from web-based e-mail accounts i.e. gmail.com stored on servers maintained by Google and not from emails stored in computers installed in the factory/ office premises of the appellant. The documents have been printed on different dates from two e-mall accounts namely rajvinbath@,gmail.com owned and operated by Sh. Rajwinder Singh Batth, Manager(Import / Export) of the appellant and [email protected] owned and operated by Sh. Samarjeet Singh, proprietor of the appellant and any document printed from these email addresses are in fact documents produced by them or has been seized from their custody and as such are covered under Section 139 ibid and it leaves no doubt that, unless the contrary is proved that the signature and other part of the documents are genuine. Moreover all the printouts taken from e-mall accounts were duly signed by respective owners of the said email accounts in token of it's correctness. The Appellants had certified each and every message culled from the e-mail accounts and never disputed the authenticity of the same. Rather this fact facts has been admitted in their statements recorded under Section 108 ibid. Therefore th....
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....of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and ....
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....ng contained in any other law for the time being in force, - (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer printout"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer printout shall be the following, namely :- (a) the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store ....
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....mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer w....
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....n 138C (4) of the Customs Act, 1962 from the authority who is in control of the said electronic record. In case the electronic record/ document was produced as primary evidence, then there is no requirement to produce such certificate, as the section 65B(2) of the Evidence Act and 138C(2) of the Customs Act, 1962 are in respect of secondary evidence and not when such electronic record/ document is produced as primary evidence. Undisputedly the electronic records/ documents produced in this case are not mere printouts seized recovered from the appellant. These electronic record/ documents are in nature of the email stored on the web servers of gmail.com, in the e-mail accounts in the name of Sh. Rajwinder Singh Batth, Manager(Import/Export) [rajvinbath@,gmail.com] and Sh. Samarjeet Singh, proprietor of the appellant [rsaminternational@ gmail.com]. Both the accounts are password protected as per the privacy policy of Google and are operated by the respective owners. During the course of investigation both these persons have themselves operated the e-mail accounts and tendered these documents from their e-mail accounts to the investigating authority. It is not the case that these elec....
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...., punched tapes) or stored internally in the memory of the computer;" 29. The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65- B(4) is not always mandatory. 30. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a par....
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....he basis of the chart, it was found that the quantity of 426.2365 MT was cleared by the M/s P.S as per invoice and the appellant has issued invoice as the quantity of 2181 MT only facilitate to avail inadmissible cenvat credit and it was also considered in the show cause notice that the appellants have received cash in their daily account as per the pen drive, therefore, the cash received has been taken as the receipt of the goods cleared clandestinely by the appellants and consequently the duty was demanded. In the pen drives recovered from M/s Priyanka Jain, the data allegedly found as under:- ....." "8. On careful consideration of submissions of both sides, we find that in this case during the course of investigation neither stock variations were found and nor any incriminating documents were recovered during the search of factory premises of appellants. Only two pen drives were recovered from the possession of Ms. Priyanka Jain in the joint office of the appellant and data has been retrieved and on that basis, the case has been made out against the appellant. Section 36B of the Central Excise Act, 1944 deals with the situation of admissibility of documents and computer....
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....statements. Therefore the provisions of Section 36B cannot be invoked to make its application in the proceedings impermissible. The printout is not standalone evidence; they become evidence only when juxtaposed alongside the bank statements. Section 36B does not bar such use of a printout in proceedings which does not satisfy the requirements of its Subsection 2(d)." 7.9 Similarly in case of Shri Ulacanavari Ammali Steels [2008 (231) ELT 434 9T-Chennai)], following has been held,- "16. We find that the printouts relied upon are not from the CPU belonging to the assessee. The precautions sought to be ensured through Section 36B(2) of the Act would appear to apply to printouts of data taken from a CPU. It cannot apply to a printout of a file in the presence of the person who had maintained the same and with the key (password) supplied by him. Such data is beyond suspicion of having been tampered by the investigating agency. These printouts are also corroborated by other evidence. In the consolidated submissions of SASAI dated 3-1-08, SASAI submitted that in the instant case the provisions of Section 36B would come into operation only when the computer printouts were sough....
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....possession of stolen goods, the prosecution will be deemed to have established the charge that he was either the thief or had received those stolen goods knowing them to be stolen. If his possession was innocent and lacked the requisite incriminating knowledge, then it will be for him to explain or establish those facts within his peculiar knowledge, failing which the prosecution will be entitled to take advantage of the presumption of fact arising against him, in discharging its burden of proof. 44. These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragmatic way to proceedings under Section 167(8) of the Act. The broad effect of the application of the basic principle underlying Section 106,. Evidence Act to cases under Section 167(8) of the Act, is that the Department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient, to raise a presumption in its favour with regard to the existence of the fact sought to be proved. Amba Lal's case, (1961) 1 SCR 933 = 1983 E.L.T. 1321, was a case of no evidence. The only circumstantial evidence viz. the c....
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....ll remains little doubt in proving the charge, its benefit must go to the returned candidate. However, it is equally well settled that while insisting upon the standard of proof beyond a reasonable doubt, the courts are not required to extend or stretch the doctrine to such an extreme extent as to make it well-nigh impossible to prove any allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. (please see S. Harcharan Singh v. S. Sajjan Singh)" In view of the clear distinction made by the Hon'ble Apex Court between the criminal proceedings and the civil proceedings under the Customs Act, 1962 we would hold that the condition of production of electronic record/ documents as evidence in the present case have been substantially complied, and these electronic records/ documents can be relied upon as evidence in the matter. Even if there is any procedural lapse the same needs to be condone as has been held by the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar, referred in para 7.6 supra. 7.11 On the basis of the discussion as above and the case laws ref....
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.... So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, t....
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....#11162; Annexure I to the SCN bringing out the details of parallel invoices recovered, ⮚ Annexure II the details of TRS sent by M/s Gursam International to Multiway Manufacturing for onward transfer to different suppliers in China, ⮚ Annexure III is the list of TTs sent by M/s Multiway Manufacturing to different suppliers in China and ⮚ Annexure IV is the list of e-mails having reference of TRS sent to different suppliers based in China and TTs sent by M/s Multiway Manufacturing, Malaysia to different Chinese suppliers in excel sheet. 8.4 Appellants have in their appeal assailed the impugned order as the request of cross examination of co-accused was denied. However in case of Surjeet Singh Chabbra [1997 (89) E.L.T. 646 (S.C.)], following has been held,- "3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said t....
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....elligence, functions specified in column No. 3 thereof. This notification is not in supersession of the earlier Notification dated 6-72011. Both notifications, therefore, co-exist. In other words notification dated 2-5-2012 has not rescinded the earlier notification. Assignment of the functions, under both notifications, therefore, must operate simultaneously. When we hold that under notification dated 6-7-2011 respondent No. 1 was assigned the functions under Sections 17 and 28 of the Act, his action of issuing show cause notice after the said date in particular cannot be seen as one without jurisdiction. We have noticed that in the clarification issued by C.B.E. & C. on 23-9-2011 it is specified that these officers "DRI and Preventive Wing" would continue the practice of not adjudicating the show cause notice issued under Section 28 of the Act. It was perhaps because of this that having issued show cause notice, the said authority placed the adjudication proceedings before the competent Customs officer at Mumbai for adjudication." 8.5 Since undoubtedly appellants have committed the fraud to avail the inadmissible benefit under Notification No 46/2011-Cus dt. 01.06.2011 issued ....
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....y passed. We also find that the officers had handed over the plant for safe custody after seizure and the same could not have been used without permission from the department. Having violated the conditions of Section 110 safe keeping by using the plant even after seizure makes the appellant liable for penalty under Section 117 of C.A. 1962. Further we find that Shri Anil Singh, Managing Director was fully aware about the benefits likely to accrue by availing ineligible notification and use of machine and therefore in such case his complicity in deliberate violation of the condition of notification is apparent. However in case of Shri V.S. Rao, Chief Manager (F & A), we find that he was only concerned with the taxation matter to the extent of availing benefit of exemption notification and was not concerned/connected with the decision to use machine and his role in violation of condition is also not visible. We are therefore of the view that he cannot be burdened with penalty. Resultantly, in view of our above findings, we uphold the impugned order inasmuch as it has confirmed demand, confiscation of goods and penalties against M/s. Apco and Shri Anil Singh. However the penalty impo....
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.... the Appellants as well as the learned Authorized Representative for the Respondent have filed the written submissions, which have been taken on record. Heard both the parties and perused the material on records and also gone through the respective opinions recorded by both the learned Members. 4. The learned Counsel for the Appellants submits that the issue in this case, on which there is a difference of opinions between the Members of the original Division Bench, is whether the present case is covered by the decision of Hon'ble Punjab & Haryana High Court in the case of M/s Prabhat Fertilizers & Chemical Works in CM-6352CWP-2020 in CWP No. 23433 of 2019 or not? 4.1 He further submits that in present appeals, the Appellants have assailed the order dated 28.05.2019 passed by the Commissioner of Customs, Ludhiana, whereby the learned Commissioner has confirmed the duty apart from imposing penalty upon both the Appellants. 4.2 He further submits that Section 28 of the Customs Act, 1962, which provides for recovery of customs duty not levied or short levied or not paid or short paid or erroneously refunded; the said Section has been amended w.e.f. 29.03.2018 and as per amende....
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.... amendment itself i.e. 29.03.2018, but retroactive amendment gives a level playing field to all previous show cause notices and in terms of principles of retroactive amendment, the old show cause notice would be treated to have been issued on the date of amendment itself. He further submits that Hon'ble High Court has clearly held that amendment is not retrospective but is retroactive in nature. 4.5 He further submits that the Respondent-Revenue itself had admitted the amendment applicable to old show cause notices in the case of M/s Shri Ram Agro Chemicals and had requested for extension of time in terms of Section 28(9A) of the Act, despite the fact that show cause notice had been issued much prior to 2018 amendment. 4.6 The learned Counsel further submits that now the issue is no more res integra as the concerned Section as well as the amendment, have been interpreted by the jurisdiction High Court and judicial discipline demands that this interpretation be followed by the Tribunal. In this regard, he places reliance on the following cases: a) Ambica Industries vs. CCE [(2007) 6 SCC 769] b) Vodafone India Ltd vs. CCE [2015 (9) TMI 583 Bom. H.C.] 4.7 Th....
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....ground of non-adjudication within one year from 29.03.2018. Not satisfying with the decision of the Hon'ble High Court, the Department filed review petition CM No. 6352 of 2020 seeking recalling of the order dated 18.12.2019 on the ground of amended Explanation 4 of Section 28 of the Act. It is to be noted that the Hon'ble High Court, vide its order dated 27.07.2020, dismissed the review petition filed by the Department and clarified that amendment of Section 28(9) of the Act is not retrospective but retroactive and as per principles of retroactive, show cause notice issued prior to 29.03.2018 shall be deemed to be issued on 29.03.2018 and the Adjudicating Authority is bound to adjudicate the show cause notice within one year from 29.03.2018. 8. Further, I also find that in the present case, show cause notice was issued on 07.10.2016 and as per the law laid down by the Hon'ble High Court in M/s Prabhat Fertilizers & Chemical Works (supra)'s case, the said show cause notice should have been adjudicated by 29.03.2019, whereas the Adjudicating Authority adjudicated the said show cause notice on 28.05.2019, which is beyond the time as prescribed by the Hon'ble High Court. 9. Furt....