2016 (5) TMI 80 - AT - Customs

Legal interpretation of the provisions of Section 28 (1A) of the Customs Act - Deposit of entire duty liability along with interest and 25% of the penalties within a period of 30 days from the date of service of SCN, therefore no further adjudication requiring confiscation of seized jewelleries or imposition of penalty - Appellant receiving gold jewellery Shri Ajit Singh/Komal Jain, who were importing the same from Dubai free of duty, in violation of the SEZ Scheme. Held that - the provision of Section 28(1A) cannot be interpreted to the effect that all the proceedings against the importer under all the Acts would be deemed to be concluded. The said provisions are applicable only in respect of proceedings under Customs Act, 1962 and provides for conclusion of the proceedings under Customs Act only. The original authority s presumption that closure of proceedings under Customs Act may conclude all proceedings under other Acts also is fallacious. He is acting under the powers vested under Customs Act, 1962. While may be vested with some powers under the provisions of allied Acts, his role comes from the Customs Act. Nothing prevents respective competent authority under other Act if there is any action warranted to be taken against any person for violation of provisions of specific law. Having deposited the full amount of duty, interest and 25% of the penalty, no further proceedings were required to be continued in terms of the provisions of Section 28(1A) and the first proviso to Section 28(1A). Therefore the impugned order has no leg to stand and is accordingly set aside. - Decided in favour of appellant with consequential relief

Issues Involved:
1. Applicability of Section 28(1A) of the Customs Act, 1962.
2. Confiscation of goods and imposition of penalties post compliance with Section 28(1A).
3. Compliance with the Delhi High Court's directive.
4. Revenue’s appeal regarding penalties.

Issue-wise Detailed Analysis:

1. Applicability of Section 28(1A) of the Customs Act, 1962:

The appellants argued that having deposited the entire duty liability along with interest and 25% of the penalties as per Section 28(1A) of the Customs Act, 1962, no further adjudication requiring any confiscation of the seized goods or imposing penalties on the other appellants was called for. Section 28(1A) provides that if the duty, interest, and 25% penalty are paid within 30 days of the receipt of the show cause notice, the proceedings shall be deemed conclusive except for proceedings under Sections 135, 135A, and 140. The Tribunal found that the appellants had complied with these provisions within the stipulated time, thereby concluding the proceedings.

2. Confiscation of Goods and Imposition of Penalties Post Compliance with Section 28(1A):

The adjudicating authority had proceeded to confirm demands, confiscate goods, and impose penalties despite the appellants' compliance with Section 28(1A). The Tribunal held that the provision is a beneficial piece of legislation intended to reduce litigation where the noticee satisfies the condition of the section. The language of Section 28(1A) is clear in providing deemed conclusion of the proceedings upon compliance. The Tribunal referenced various decisions and Board Circular No.831/8/2006-CX dated 26.7.2006, which supported the view that no further proceedings can continue before the adjudicating authority once compliance is achieved.

3. Compliance with the Delhi High Court's Directive:

The appellants had filed a writ petition before the Delhi High Court, which directed them to file an application before the adjudicating authority. The Tribunal noted that the appellants' grievance about the delay in adjudication by the Commissioner was valid but focused on the interpretation of Section 28(1A). The Tribunal agreed with the appellants that the proceedings should have been deemed conclusive upon deposit of the amounts, as directed by the High Court.

4. Revenue’s Appeal Regarding Penalties:

Revenue appealed against the non-imposition of penalties on some noticees and the reduction of penalties on others. The Tribunal, having concluded that the proceedings should not have continued post-compliance with Section 28(1A), found the Revenue’s appeals infructuous. The Tribunal rejected Revenue’s appeals, emphasizing that the proceedings were not required to be continued once the appellants complied with the statutory provisions.

Conclusion:

The Tribunal set aside the impugned order, allowing the appeals with consequential relief to the appellants. The Tribunal also rejected the Revenue's appeals, reinforcing that the proceedings should have been deemed conclusive upon compliance with Section 28(1A) of the Customs Act, 1962.

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