1994 (6) TMI 19 - HC - Customs

Summary

Issues Involved:
1. Legality and validity of the notices issued by the Assistant Collector of Customs, Internal Audit Department, Madras.
2. Whether the subsequent notices dated 27-9-1984 were barred by limitation.

Summary:

Issue 1: Legality and Validity of Notices Issued by Assistant Collector of Customs, IAD, Madras

The court examined whether the notices dated 10-2-1984 and 28-5-1984 issued by the Assistant Collector of Customs, Internal Audit Department (IAD), Madras were legal and valid. The Assessee argued that the Assistant Collector (IAD), Madras was not the "proper officer" u/s 28 of the Customs Act as he was only involved in auditing the Bangalore office and had no authority over imports made at Bangalore. The court agreed, noting that the "proper officer" should have jurisdiction over the area where the import occurred. The court concluded that the notices were invalid as they were not issued by the proper officer attached to the jurisdictional Collectorate at Bangalore.

Issue 2: Limitation on Subsequent Notices Dated 27-9-1984

The subsequent notices dated 27-9-1984 were issued by the Superintendent of Customs, ICD, Bangalore for the Assistant Collector of Customs, Bangalore, who was recognized as the proper officer. The court considered whether these notices were time-barred as they were issued beyond six months from the relevant date. The Assessee contended that the larger period of five years under the proviso to Section 28(1) could not be invoked as the notices did not allege collusion, wilful mis-statement, or suppression of facts by the importer.

The court held that the absence of explicit mention of collusion, wilful mis-statement, or suppression of facts in the notices does not automatically render them time-barred. The court emphasized that the revenue must prove these elements during adjudication to invoke the extended limitation period of five years. The court found that the notices contained a basis for alleging wilful mis-statement or suppression of facts, as they indicated that the imported items were misrepresented to avail concessional duty. Therefore, the issue of whether the notices were time-barred would depend on the findings during the adjudication proceedings.

Conclusion:

The court concluded that the first set of notices were without jurisdiction. However, it kept open the question of whether the Assistant Collector's subsequent notices were barred by time, which would depend on the evidence presented during the adjudication proceedings. The Tribunal was directed to modify its remand order accordingly.