9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (2) TMI 522 - HC - CustomsAvailment of fraudulent Special Focus Market Scheme (SFMS) benefits - production of forged house BLs and Landing Certificate, wherein consignee country was deliberately mis-declared by them for availing undue benefits under the Scheme - export goods did not correspond with the material particulars with regard to the port of discharge and country of destination - Section 28AAA of the Customs Act, 1962 - Time limitation - HELD THAT - Since the matter is at the stage of SCN, which in our prima facie opinion is not time barred, especially looking to Section 28 AAA of the Customs Act, 1962 and the facts of this case. We are not inclined to entertain the petition at this stage. It is open to the petitioner to file a reply in response to the SCN and a decision shall be taken thereafter by the respondents, in accordance with law and taking into account the stand of the petitioner. It is also open to the petitioner to raise the grounds taken in the present petition in reply to the SCN including the objection to the jurisdiction, power and authority of the concerned respondent to issue the SCN which is one of the grounds urged in the petition. Respondents are hereby directed to take a decision pursuant to the SCN dated 24.01.2020 in accordance with law, Rules, Regulations and Government Policies applicable to the facts of the case and also keeping in mind the evidence on record, as early as possible and practicable. The issues raised herein with respect to the SCN being time barred, applicability of Section 28 (1) or Section 28AAA as well as the jurisdiction of the concerned authority are also left open to be decided by the concerned respondent - petition disposed off.
Issues Involved:
1. Whether the show cause notice (SCN) dated 24.01.2020 is time-barred under Section 28 of the Customs Act, 1962. 2. Whether the respondent has the power, jurisdiction, and authority to issue the SCN. 3. The applicability of Section 28AAA of the Customs Act, 1962. 4. Prematurity of the writ petition. Issue-wise Detailed Analysis: 1. Whether the SCN is time-barred under Section 28 of the Customs Act, 1962: The petitioner contended that the SCN dated 24.01.2020 is time-barred as per Section 28 of the Customs Act, 1962. The petitioner argued that the limitation to demand and recover the duty ended on 11.09.2018 or 22.03.2019 since the exports were made between 08.03.2013 and 12.09.2013, and the FMS Authorisation was issued between 19.06.2013 and 23.04.2014. The petitioner relied on various judgments including State of Punjab v. Bhatinda District Co-op. Milk P. Union Ltd., Madina (UZ) Impex v. Union of India, and Famina Knit Fabs v. Union of India. Upon examining the facts, the court noted that the SCN alleged fraudulent availing of SFMS benefits by producing forged documents and mis-declaring consignee countries. The court observed that the investigation involved verifying 203 shipping bills and cross-checking with various departments, which was a time-consuming process. The court found no merit in the contention that the SCN was time-barred, noting that investigations of such magnitude cannot be completed overnight. The court referenced Section 28AAA of the Customs Act, 1962, and concluded that the SCN was not prima facie time-barred. 2. Whether the respondent has the power, jurisdiction, and authority to issue the SCN: The petitioner argued that respondent No.2 did not have the power, jurisdiction, and authority to issue the SCN. The court did not find sufficient grounds to entertain this argument at the stage of the writ petition. The court emphasized that the petitioner could raise this issue in their reply to the SCN, and it would be decided by the concerned respondent in accordance with the law. 3. The applicability of Section 28AAA of the Customs Act, 1962: The respondent contended that the SCN was not time-barred under Section 28AAA of the Customs Act, 1962, as the petitioner was guilty of suppression of facts and wilful mis-statements in claiming benefits under the SFMS. The court found merit in this contention and referenced the Supreme Court's judgment in Commissioner of Customs, New Delhi v. C.T. Scan Research Centre (P) Ltd., which held that Section 28(1) of the Customs Act was not applicable in cases involving fraud or collusion. The court concluded that the SCN was not prima facie time-barred under Section 28AAA. 4. Prematurity of the writ petition: The court held that the writ petition was premature as the petitioner had not yet filed a reply to the SCN. The court referenced several Supreme Court judgments, including Union of India and Ors. v. Coastal Container Transporters Association & Ors., Malladi Drugs and Pharma Limited v. Union of India & Anr., and Commissioner of Central Excise, Haldia v. Krishna Wax Private Limited, which emphasized that writ petitions should not be entertained at the stage of SCN unless there is a lack of jurisdiction or violation of natural justice. The court directed the petitioner to file a reply to the SCN and allowed the respondents to take a decision in accordance with the law. Conclusion: The court concluded that the SCN was not prima facie time-barred and that the writ petition was premature. The petitioner was directed to file a reply to the SCN, and the respondents were instructed to take a decision based on the law, rules, regulations, and government policies applicable to the case. The court left open the issues of the SCN being time-barred, the applicability of Section 28(1) or Section 28AAA, and the jurisdiction of the concerned authority to be decided by the respondents. The writ petition was disposed of with these observations.
|
