2017 (7) TMI 152 - AT - Customs

Legality and propriety of invoking the proviso section 28 of Customs Act, 1962 - finalization of provisional assessment in accordance with section 18 of Customs Act, 1962 - C&F service - canalising charges - extended period of limitation - penalty - Held that - It is very clear that the tax authorities cannot claim lack of knowledge of the canalising fee that is now proposed to be incorporated in the assessable value. Consequently, invoking of the extended period fails. With that the imposition of penalty under section 114A also fails. Redemption fine - Held that - It is that custodianship of the confiscated goods that enables the adjudicating authority to permit its redemption on payment of the prescribed fine. Without the wherewithal to return the goods on fulfilment of the condition of fine, the imposition of redemption fine is an exercise in futility. Imposition of redemption fine does not of itself create a debt to the government. The option to redeem his one that has to be exercised by the person to whom that offer has been extended. The imposition of fine in the impugned order is, therefore, set aside. Personal penalty on officers - Held that - it must be borne in mind that these are employees of a public sector enterprise and who would not have derived any benefit personally from an act of smuggling of liquefied petroleum gas - penalties set aside. Appeal allowed - decided in favor of appellant.

Issues:
1. Legality and propriety of invoking the proviso section 28 of Customs Act, 1962 in relation to adjudication upon finalization of provisional assessment.
2. Alleged suppression of canalising commission leading to differential duty demand, confiscation of goods, and imposition of penalties.
3. Discrepancy in the fee levied by the canalising agency and disclosure by the importer.
4. Proper procedure for finalization of provisional assessment and subsequent imposition of duty and penalties.
5. Applicability of Supreme Court judgments on inclusion of service charges in assessable value and invoking extended period under section 28 of Customs Act, 1962.
6. Whether proceedings under section 28 can be initiated while the issue is pending in the appellate hierarchy.
7. Concerns regarding piecemeal adjudication, bypassing appellate procedure, and resorting to the proviso in section 28.
8. Lack of knowledge regarding canalising fee, failure of invoking extended period, and consequent failure of penalty imposition.
9. Imposition of redemption fine on goods not in custody and clarity on the purpose and legality of such fines.
10. Imposition of personal penalties on officers of the importing company and their justification.
11. Final decision on setting aside the impugned order and allowing the appeals.

Analysis:
1. The judgment dealt with the legality and propriety of invoking the proviso section 28 of the Customs Act, 1962 in the context of finalizing provisional assessments. The Tribunal considered the issue of differential duty demand, confiscation of goods, and penalties imposed under sections 114A and 112 of the Customs Act, 1962.

2. The case involved allegations of suppression of canalising commission, leading to proceedings against the importing company for non-compliance with the Foreign Trade Policy. The Tribunal discussed the designated canalising agency, requirements for procurement through the agency, and the consequences of non-compliance.

3. A discrepancy was noted in the fee levied by the canalising agency and the disclosure made by the importer. The issue of proper disclosure and assessment of fees formed a crucial part of the proceedings.

4. The judgment highlighted the procedural aspects of finalizing provisional assessments, including the role of the original authority, the first appellate authority, and the Tribunal in determining duty liabilities and penalties.

5. The Tribunal referenced Supreme Court judgments regarding the inclusion of service charges in assessable value and the applicability of the extended period under section 28 of the Customs Act, 1962. The interpretation of these judgments influenced the decision-making process.

6. The Tribunal deliberated on whether proceedings under section 28 could be initiated while the issue was pending in the appellate hierarchy, emphasizing the need for a coherent and consistent approach to adjudication.

7. Concerns were raised regarding piecemeal adjudication, bypassing the appellate procedure, and the resort to the proviso in section 28. The Tribunal scrutinized the actions of the tax authorities in light of established legal principles.

8. The judgment addressed the lack of knowledge regarding the canalising fee, the failure to invoke the extended period, and the subsequent failure to impose penalties under section 114A.

9. The imposition of redemption fines on goods not in custody raised questions about the purpose and legality of such fines. The Tribunal examined the provisions of the Customs Act, 1962 related to confiscation and redemption of goods.

10. The imposition of personal penalties on officers of the importing company was reviewed, considering their involvement in the contravention leading to confiscation. The Tribunal assessed the justification for imposing penalties on the employees.

11. Ultimately, the Tribunal set aside the impugned order in its entirety, allowed the appeals, and made decisions on the applications for stay, bringing a comprehensive conclusion to the legal proceedings.

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