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2021 (12) TMI 1339 - HC - CustomsSeizure of export consignments - nut, bolts, washer, hand tools, etc. - duty drawback scheme - over-weighed goods - proper classification of goods not done - to be classified under 7308 or under 7318 of CTA - HELD THAT - In the instant case, the grievance on the part of the petitioners is that the Order-in-Original does not recognize the issue of limitation although the same being the settled law. Here the petitioners have exported the articles from Mundra Port and had claimed that drawback and benefit under the Focus Product Scheme (FPS). The allegation has been that it had indulged in misuse of drawback scheme and FPS and other exports incentives by way of making export of scaffolding items falling under CTH No.7308 by placing under CTH Nos.731816000, 39235010, 39269099 and 82057000 with the allegation of export of less quantity of goods than what was declared and over valuing of the export products. After the proper officer had allowed the export to be made, the DRI has initiated the action. Admittedly, the export of goods covered under shipping Bill Nos.6982047 and 6982039 both dated 01.01.2015 and export goods covered under shipping Bill Nos.6998694 and 6997757 both dated 02.01.2015 had been seized carrying out the panchnama dated 08.01.2015. The DRI had allegedly noticed the shortage of 3205 Kg and 2990 Kg than what had been declared in the shipping bills. The goods were detained pending the inquiry and were handed over for safe custody. After the seizure of the goods as per Section 110 of the Customs Act, the DRI, Ahmedabad wrote a letter to the Joint/Additional Commissioner of Customs for giving No Objection for provisional release of seized goods - On execution of bond of 100% FOB value of goods along with 25% security in the form of Bank Guarantee, the same had been permitted. The show cause notice is issued by the authority for the shipping bills from the years 2011 to 2015. The list of shipping bills has been given barring a very few shipping bills which have been submitted here duty drawback has been paid to the petitioner for numerous shipping bills from 2011 to 2014 long before and therefore, any show cause notice issued after a period of three years from the date when drawback came to be paid, cannot be sustained. This is also one serious breach deserving indulgence. In relation to most of the shipping bills, duty drawbacks have been paid where this decision would come to the rescue of the petitioner. The proper officer who assesses the shipping bills will be in a position to reopen the same provided that there is such a stage of reopening the shipping bill filed once are self assessed, that would attain finality upon the proper officer clearing the same. Had there been any discrepancy, the proper officer would not consider the self assessment final and would obviously assess the shipping bill before finalizing - In the instant case, the shipping bills had been finally assessed and the assessment had attained finality. The aggrieved party having any issue on the classification would need to approach the appellate authority instead of reopening the assessment by issuing the show cause notice. The appeal appears to have become time barred as averred by the petitioners, the show cause notice is on account of the misclassification. The initiation of the action on the part of the DRI on an intelligence of is severally questioned when the proper officer has already held in favour of the assessee classifying the item of export under a different head - Even without touching the ratio laid down in case of M/s.Cannon India Private Limited 2021 (3) TMI 384 - SUPREME COURT as this decision came recently, on non consideration of the ground of limitation also, interference is desirable. The action of the respondent authority of issuance of the SCN dated 09.02.2018 is interfered with. The SCN in the present form is quashed and set aside - Petition allowed in part.
Issues Involved:
1. Jurisdiction of the respondent to issue the Show Cause Notice (SCN). 2. Allegations of mis-declaration of weight, classification, and value of goods. 3. Validity of the SCN issued after a significant time lapse. 4. Compliance with principles of natural justice. 5. Applicability of Rule 16 of the Drawback Rules and the reasonable period for recovery of erroneous payments. Issue-Wise Detailed Analysis: 1. Jurisdiction of the Respondent to Issue the SCN: The petitioners challenged the SCN dated 09.02.2018 on the grounds of lack of jurisdiction. The SCN was issued by the Additional Commissioner of Customs, Mundra, regarding goods exported from Mundra Port. The respondent argued that the SCN was within jurisdiction as per the monetary limit fixed by the Central Board of Indirect Taxes and Customs, citing the Madras High Court decision in K.P. Abdul Majeed vs. Collector of Customs & Central Excise, Cochin. The court upheld the jurisdiction of the respondent, affirming that the cause of action arose within the territorial jurisdiction of the Commissionerate. 2. Allegations of Mis-Declaration of Weight, Classification, and Value of Goods: The SCN alleged mis-declaration of weight, classification, and value of goods exported from 01.01.2011 to 30.06.2015. The petitioners contended that the goods were classified and valued as per the Customs Tariff Act and assessed by the proper officer. The court noted that the petitioners had followed the prescribed procedure for export, and the final assessment by the proper officer should be treated as final. The court also highlighted that the goods were already exported, and reclassification after export was impermissible. 3. Validity of the SCN Issued After a Significant Time Lapse: The court examined whether the SCN issued after a considerable delay was valid. It referred to Rule 16 of the Drawback Rules, which does not prescribe a time limit for recovery of erroneous payments but emphasized the need for a reasonable period. The court cited previous judgments, including Special Civil Application No.2039 of 2004, which established that a reasonable period should be read into Rule 16. The court concluded that the SCN issued after more than three years from the date of payment of the drawback was time-barred and invalid. 4. Compliance with Principles of Natural Justice: The petitioners argued that the adjudication of the SCN breached the principles of natural justice. The court noted that the petitioners were not given a fair opportunity to present their case, and the order was passed without considering their submissions. The court emphasized the importance of adhering to natural justice principles and held that the impugned order was in breach of these principles. 5. Applicability of Rule 16 of the Drawback Rules and the Reasonable Period for Recovery of Erroneous Payments: The court analyzed Rule 16 of the Drawback Rules, which allows recovery of erroneous or excess payments without specifying a time limit. The court reiterated that a reasonable period must be read into the rule, as established in previous judgments. It held that the SCN issued after more than three years was beyond a reasonable period and, therefore, invalid. The court also noted that the proper officer's assessment had attained finality, and reopening the assessment was not permissible. Conclusion: The court partially allowed the petition, quashing the SCN dated 09.02.2018 and all consequential actions. It clarified that for shipping bills not covered by the decision in PRATIBHA SYNTEX LIMITED, the authority could proceed if allowed under the law. The court emphasized the need for adherence to binding precedents and the principles of natural justice, and the importance of issuing SCNs within a reasonable period.
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