TaxTMI 
TaxTMI 
2026 (6) TMI 1252
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....in the nature of Prohibition or any other appropriate Writ, Order or Direction thereby Prohibiting the Second Respondent herein completely and permanently from taking into consideration contents and documents referred to in Corrigendum F.No. DRI/AZU/GRU-60/2013 (Vidres India) dated 22.08.2016 (Annexure-F). (B) Your Lordships may be pleased to issue a Writ of Mandamus or a Writ of Certiorari or any other appropriate Writ, Order or Direction thereby quashing and setting aside Corrigendum dated 22.08.2016 (Annexure-F) along with documents referred to in the Corrigendum, and be further pleased to direct respondent no.2 herein to pass an appropriate adjudication order on show cause notice F No. DRI/AZU/GRU-60/2013 dated 10.04.2014 without taking into consideration the contents and documents of the said Corrigendum dated 22.08.2016. (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents, their servants and agents including the Principal Commissioner of Customs, Ahmedabad from taking any actions against the petitioners on the basis of Corrigendum F.No. DRI/AZU/GRU-60/2013 (Vidres India) dated 22.08.2016. ....
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....f Customs when the petitioners submitted a note of final submissions. After hearing the petitioners on 11.07.2016 and taking the above note on record, the Principal Commissioner of Customs concluded the hearing and adjudication, for passing final order on the show cause notice. 4.6 On 22.08.2016, after concluding hearing and posting the case for passing orders, a Corrigendum is now served upon the petitioners for adding new paragraphs in the show cause notice with a new allegation that the goods imported by M/s. Krishna Colour Chem of Morbi and the goods imported by the Petitioner Company were one and the same. SUBMISSIONS ON BEHALF OF THE PETITIONER : 5. Learned advocate, Mr. Paresh M. Dave appearing for the petitioners has submitted that the Corrigendum issued on 22.08.2016 cannot be considered in the adjudicating process since the proceedings were finally concluded on 11.07.2016 and only final order was required to be passed by the Principal Commissioner of Customs. It is submitted that the entire new case is sought to be projected through the Corrigendum by comparing the goods of M/s. Krishna Colour Chem of Morbi with whom, the petitioners do not have any connection. I....
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....or short 'Regulations of 2019') more particularly, Regulation 4(d) which permits to issue supplementary notice in case there is an additional evidence that would have a significant bearing on the outcome of the case. 7.1 Learned Senior Standing Counsel, Ms. Hetvi H. Sancheti has submitted that in the present case during further investigation, when the representative samples were drawn from the stock of "Pigmented Ink" imported by M/s. Krishna Colour Chem, Morbi, from the same entity i.e. Esmalglass Itaca, Spain, and during the course of adjudication proceedings, a new evidence was revealed on the statement dated 07.01.2014 of Shri Bhavesh K. Maniar, partner of M/s. Krishna Colour Chem, Morbi, that the petitioners - M/s. Vidres India Ceramics Private Limited used to purchase Ceramic Inks from Itaca, Spain, through Vidres, S.A. based in Spain and they used to give their own codes for the said Inks and the evidence which directly related to the proving of complicity of the present petitioners, was introduced through the Corrigendum dated 22.08.2016 and accordingly, in paragraph No.5.1 was proposed to added in the original show cause notice dated 10.04.2014 below paragraph No.5. It ....
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....ard the learned advocates appearing for the respective parties at length. The following undisputed facts are established from the record : 9.1 The petitioners are subjected to the proceedings which are initiated vide show cause notice dated 10.04.2014 by alleging that in respect of 25 separate Bills of Entry under the sub-heading No.32071090, the petitioners have in-fact imported 'Pigments' and not 'Printing Inks' and the custom duty is required to be charged at higher rate. The show cause notice is issued after the investigation has been done by the DRI Authority. 9.2 The petitioners, who responded to the show cause notice vide its reply dated 10/11.12.2014, had also requested crossexaminations of the Departmental Chemical Analyzer since it was a specific case of the petitioners that the samples which were collected, tested and analyzed, were not from their goods but from someone else goods. 9.3 On 10.12.2015, the Joint Director of Customs Laboratory, Kandla, was cross-examined before the Adjudicating Authority i.e. Principal Commissioner of Customs. 9.4 On 15/18.12.2015, cross-examination of one Shri R Dashrathan was done, who confirmed that th....
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....graph No. 19 of the show cause notice for the reason that the same contains expression "prior to the adjudication of the case". In common legal parlance, adjudication is a legal process of deciding/resolving the dispute, which ends with the decision declaring the rights, obligations and liabilities of the parties involved. It is not denied or controverted by the respondents that the proceedings initiated from the show cause notice, got over on 11.07.2016 and the Adjudicating Authority kept the matter for final orders. Thus, the adjudication process got over on 11.07.2016 when the matter was kept for final orders. Thus, the modification or supplementation of the notice on the basis of available further evidence, was available prior to the adjudication of the case, which the respondents have not done. It is true that adjudication of the case would also include the final orders however, the Corrigendum introduces something new or fresh evidence with fresh allegations into the show cause notice, which has travelled to the final stage of passing the final order. During the entire adjudication of the show cause notice, the department did not introduce the further evidence. Even if, it....
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....od, 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.]" 13. The provisions of sub-section (7A) of Section 28 of the Act on which, the respondents have placed reliance, were inserted by Finance Act, 2018 with effect from 28.03.2018. The respondents have placed reliance on the Customs (Supplementary Notice) Regulations, 2019, which are framed under the provisions of sub-section (7A) of Section 28 of the Act prescribing the manner and the circumstances under which supplementary notice has to be issued. The relevant provision on which reliance is placed, is Regulation 4(d) of Regulations of 2019, which reads thus: "4. Manner and circumstances under which a supplementary notice may be issued.- ....
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....notice shall be continued to be governed by the provisions of Section 28 of the Act as it stood immediately before such date. Thus, the provisions of Section 28 of the Act, which existed prior to March, 2018, will govern the case of the petitioners. 15.1 Thus, the respondents cannot take shelter under provisions of sub-section (7A) of Section 28 of the Act and contend that the department can always issue supplementary notice on the basis of the fresh evidence, which has been collected. We are also of the opinion that Corrigendum, which is issued introducing paragraph No. 5.1 with fresh allegations and evidence, cannot take the form of a supplementary notice as mentioned in the Regulations of 2019. 16. At this stage, we may also refer to the aforementioned provisions of sub-sections (4), 8 and 9(b) of Section 28 of the Act. It is not denied by the respondent-department that the case of the petitioners for levy of the duty has been considered under the provisions of sub-section (4) to Section 28 of the Act, which mentioned the limitation of five years for issuance of service of notice on the person, chargeable with duty or interest. Sub-section (8) to Section 28 of the Act mand....