2021 (10) TMI 771 - AT - Customs

Jurisdiction - power of DRI to issue SCN - section 28 of Customs Act - HELD THAT - Since both sides agree that the case is covered by Cannon India, and that the SCN was issued by DRI, the impugned order arising out of the SCN cannot be sustained as per M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS 2021 (3) TMI 384 - SUPREME COURT , judgments of the Hon ble Supreme Court in COMMISSIONER OF CUSTOMS, KANDLA VERSUS M/S. AGARWAL METALS AND ALLOYS 2021 (9) TMI 316 - SUPREME COURT , judgment of the Hon ble High Court of Karnataka in SHRI MOHAN C. SUVARNA DIRECTOR (FINANCE AND ADMIN) M/S. GIVAUDAN INDIA PVT. LTD. VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS, ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF REVENUE INTELLIGENCE, BANGALORE 2021 (8) TMI 178 - KARNATAKA HIGH COURT and judgment of the Hon ble High Court of Madras (Madurai bench) in QUANTUM COAL ENERGY (P) LTD. VERSUS THE COMMISSIONER, OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, TUTICORIN 2021 (3) TMI 1034 - MADRAS HIGH COURT , we do not find it necessary to examine the merits of the case. Appeal dismissed - decided against Revenue.

Issues:
1. Jurisdiction of DRI to issue show cause notice under Customs Act.
2. Allegations of mis-declaration, mis-classification, and undervaluation leading to short payment of duty.
3. Impugned order reclassifying goods, enhancing assessable value, demanding duty, interest, confiscating goods, and imposing penalties.
4. Dispute over penalties imposed under specific sections on importer, Shri Dalmia, and Shri Tagra.
5. Impact of judgments like Cannon India on the case.

Issue 1: Jurisdiction of DRI to issue show cause notice under Customs Act:
The appeals involved challenges to an Order in Original issued by the Additional Director General (Adjudication) of Directorate of Revenue Intelligence (DRI). The show cause notice (SCN) was issued by DRI proposing reclassification of goods, enhancing assessable value, recovering alleged short paid duty, imposing penalties, and confiscating goods. The crux of the matter was whether DRI had the authority to issue SCNs under Section 28 of the Customs Act. The appellants argued that as per the judgment in Cannon India Ltd. vs. Commissioner of Customs, DRI officers were not proper officers to issue SCNs under Section 28. They contended that since the demand under Section 28 lacked jurisdiction, the confiscation and penalties proposed in the impugned order should not stand.

Issue 2: Allegations of mis-declaration, mis-classification, and undervaluation:
The case revolved around the importer's alleged mis-declaration and undervaluation of goods, including Viewing Cards for Set top boxes (STBs) and Transmission Dishes. The DRI contended that the importer mis-declared Viewing Cards as "Smart Cards," misclassified them, and undervalued goods to avail ineligible duty exemptions. The importer was also accused of not including royalty/license fees in the declared prices, resulting in undervaluation. The DRI issued an SCN proposing reclassification of goods, recovery of short paid duty, and penalties based on alleged mis-declaration and undervaluation.

Issue 3: Impugned order reclassifying goods, enhancing assessable value, etc.:
The ADG(Adjudication) DRI passed the impugned order reclassifying Viewing Cards, enhancing assessable value of goods, demanding differential duty, recovering interest, confiscating goods, and imposing penalties. The Revenue contested the absence of penalties under Section 114AA, while the importer, Shri Dalmia, and Shri Tagra challenged the entire order, including reclassification, re-valuation, duty demand, interest recovery, confiscation, and penalties. The disagreements centered on the adequacy and legality of the penalties imposed on various parties.

Issue 4: Dispute over penalties imposed under specific sections:
The Revenue, importer, Shri Dalmia, and Shri Tagra were all dissatisfied with aspects of the penalties imposed in the impugned order. The Revenue objected to the absence of penalties under Section 114AA, while the importer contested the entirety of the penalties imposed on them. Shri Dalmia and Shri Tagra were specifically aggrieved by the penalties imposed on them individually. The different parties sought varying outcomes regarding the penalties levied under different sections of the Customs Act.

Issue 5: Impact of judgments like Cannon India on the case:
The judgments in cases like Cannon India had a significant impact on the present matter. Both parties acknowledged that the case fell under the purview of Cannon India, which questioned the authority of DRI officers to issue SCNs under Section 28. Citing precedents like Agarwal Metals and Guvidivan, the appellants argued that the impugned order could not be sustained due to the lack of jurisdiction in issuing the SCN by DRI. The final decision to set aside the impugned order and allow the appeals of the importer, Shri Dalmia, and Shri Tagra was influenced by the legal precedents established in cases like Cannon India and subsequent judgments.

This comprehensive analysis of the judgment highlights the key legal issues, arguments presented by the parties, findings of the tribunal, and the impact of relevant legal precedents on the final decision.

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