2015 (1) TMI 1261 - HC - Customs

Recovery proceedings initiated by the Customs authorities after a period of more than eight years from the completion of the export transaction - validity of issuance of show cause notice - Period of limitation - Held that - Since it is evident that no notice was issued by the department to the first petitioner within five years of February 2005 the steps taken by the respondent authorities to recover the duty exemption afforded to the first petitioner cannot be permitted to continue. The show-cause notice dated July 11 2011 a copy whereof appears as Annexure P-8 to the petition at page 60 thereof is set aside as being without jurisdiction. As a consequence all steps taken pursuant to the show cause notice including the order-in-original dated February 26 2014 are also set aside. - Decided in favor of petitioners.

Summary

Issues:
1. Barred recovery proceedings by Customs authorities after more than eight years from export transaction completion.

Analysis:
The petitioners argued that the show cause notice and recovery proceedings initiated by the Customs authorities after more than eight years from the completion of the export transaction were barred by Section 28 of the Customs Act, 1962. The petitioners had obtained an advance license in 2002 for exporting ladies' garments made from imported polyester with limited cotton and spandex content. The Customs authorities drew samples from the exported goods around 2005 and issued a notice in July 2011, alleging that the imported fabric was not used for manufacturing the exported goods, demanding a refund of duty exemption granted to the first petitioner.

The petitioners claimed that they received the show cause notice in December 2013, despite the envelope showing a date of February 2013. The respondents contended that the petitioners should have exhausted statutory remedies before approaching the Court directly against the order-in-original. However, the Court held that if the authority to issue the show cause notice was questioned, the Court could consider and quash the proceedings under Article 226 of the Constitution.

Section 28(4) of the Customs Act stipulates a five-year period for issuing notices in cases of duty evasion due to collusion or misstatement. In this case, the advance license was obtained in 2002, and the export transaction was completed by 2005. The last shipping bill was dated February 9, 2005. The Court noted that if any doubt favored the department, the notice should have been issued by February 9, 2010. However, the notice was issued in 2011, more than six years later, which was beyond the statutory limit.

The Court concluded that since no notice was issued within five years of the relevant date, the recovery proceedings were impermissible. The show cause notice and subsequent order-in-original were set aside, allowing the petition. The Court also directed the Registrar to forward the order to the Ministry of Finance for an inquiry into the delayed notice issuance, questioning the delayed availability of test results conducted in 2005 only becoming known to Customs authorities in 2011.