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2015 (10) TMI 2034 - HC - Customs100% EOU - Improper accounting of the imported materials - Manufacture of cotton yarn - Whether mentioning of Section 72 of the Customs Act, 1962 along with Section 28 would render the SCN outside the purview of Section 72 and wrong mention of provision of law in SCN is sufficient to invalidate the exercise of that power? Exemption claimed under Notification No.53/97 (Cus) Department contended that time limit specified under Section 28(1) was not applicable and that applicable provisions were those of Section 72(1) which did not specify any time limit; mere wrong mentioning of provision would not render the entire exercise futile. Held That - Relevant provision of Section 72 was not invoked and there was no charge or SCN in support of such demand; assessee cannot be asked to answer the charge, which is not specifically raised There is no question of suppression of facts on part of assessee - First question of law does not arise, since the SCN does not support such a plea SCN is bereft of demand to support claim under Section 72; second question of law is not relevant to the facts of the present case Decided in favour of assessee.
Issues Involved:
1. Whether mentioning Section 72 of the Customs Act, 1962 along with Section 28 in the Show-Cause Notice renders it outside the purview of Section 72. 2. Whether wrong mention of a provision of law in the Show Cause Notice invalidates the exercise of that power when the power exercised is available under a different provision. Issue-wise Detailed Analysis: 1. Mentioning Section 72 along with Section 28 in the Show-Cause Notice: The case involves a 100% Export Oriented Undertaking engaged in manufacturing cotton yarn, which imported cotton without paying customs duty under Notification No. 53/97-Cus dated 03.06.1997. The dispute arose when the Department found that the waste generated from the imported cotton exceeded the permissible limit of 25%, leading to a Show-Cause Notice issued on 16.12.2003. The Show-Cause Notice demanded Rs. 6,21,062/- under the proviso to Section 28(1) read with Section 72 of the Customs Act, 1962. The Adjudicating Authority concluded that there was no suppression of facts by the assessee, as the jurisdictional Central Excise Officers were aware of the waste generated through various correspondences. Consequently, the demand was dropped on the ground of limitation under Section 28 of the Customs Act. Upon appeal, the Commissioner (Appeals) upheld the Adjudicating Authority's decision, stating that Section 72 was not applicable as the Department proceeded entirely on the basis of Section 28. The Commissioner (Appeals) emphasized that the goods in question were not bonded under Section 59, and thus, Section 72(1)(d) was irrelevant. The Tribunal concurred, noting that the Show-Cause Notice primarily invoked Section 28, with only a peripheral mention of Section 72, and dismissed the Department's appeal. 2. Wrong Mention of Provision of Law: The Department argued that the mere wrong mention of a provision does not invalidate the exercise of power if the power is available under a different provision. They cited the Supreme Court's decision in Collector of Central Excise, Calcutta V. Pradyumna Steel Ltd., which held that mentioning a wrong provision does not invalidate the exercise of power if the correct provision is available. However, the Court found that the Department's claim was not about a wrong provision being quoted but rather that there was no material or allegation to support the invocation of Section 72 in the Show-Cause Notice. The Court held that the assessee could not be asked to answer a charge not specifically raised in the notice. Conclusion: The Court concluded that there was no basis for invoking Section 72 of the Customs Act, as the Show-Cause Notice did not support such a demand. The original and appellate authorities correctly found no suppression of facts by the assessee, and the demand was unsustainable. Consequently, the first question of law did not arise, and the second question was irrelevant to the case. The appeal was dismissed, with no costs, and the connected Miscellaneous Petition was also dismissed.
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