2019 (3) TMI 890 - AT - Customs

Principles of natural justice - demand based on audit objections without issuing SCN - case of appellant is that the order of assessment was confirmed without giving an opportunity to the importer for being heard - Whether principles of natural justice have been violated vis- -vis less charge demand and adjudication order issued to the appellants? - Held that - During the relevant period copies of the letters were given to the CHA while they were sent by post to the appellants. The letters or orders did not come undelivered as per the averment of the department. It is also not the appellant s contention that they have changed their address during the relevant period. Therefore, there appears to be no cogent reason to suspect that the letters/orders were not delivered to/ received by the appellants. The appellants being regular importers/ exporters at that time, the CHA could have also handed over them the letters - both the sides have contributed to the condition where principles of Natural Justice have been violated in spirit, if not in Letter. Normally, the issue may have to go back to the Original adjudicating authority for a fresh consideration. Demand of interest - Whether the provisions of interest which came into effect in 1996 can be made applicable to the imports made in 1992? - Held that - The relevant date should be the date of occurrence of taxable event. It is not the intention of Law to penalize importers where the taxable event has occurred before the new legislation came in to effect. Moreover, the appellants were not put to Notice on the requirement of paying interest vide the adjudicating order. Therefore, the appellants are not required to pay any interest on the duty confirmed - Thus, the appellant is not required to pay any interest. It was not correct for the department to collect Interest. Freezing of appellant's accounts - Whether the Revenue was within their right to freeze the accounts of the appellant? - Held that - Going by the above provisions of Section 142, it is seen that the Commissioner of Customs is empowered to recover sums due to government by distraining any movable or immovable property belonging to or under the control of the defaulter. Therefore deducting the amount due from the ums payable to the defaulter or detaining / selling the goods belonging to the defaulter and lying in the custody of customs or detaining the movable or immovable property are within the ambit of powers conferred under Section 142 - there is no infirmity in the said orders issued by the Commissioner in freezing the bank accounts of the Appellants. However, freezing of accounts for recovery of interest which is not payable is incorrect. Whether there is a case for contempt proceedings against the Commissioner? - Held that - Contempt proceedings at this stage would not solve any purpose rather than to further increase the litigation which in no way was the intention of the above cited orders of the Tribunals. As the accounts have been defreezed and a speaking order has been passed by the Learned Commissioner, no further justice could be achieved by pursuing the contempt proceedings. Therefore, at this juncture when the final order is ready to be issued I am not inclined to pursue the contempt proceedings. Appeal disposed off.

Summary

Issues Involved:
1. Violation of principles of natural justice.
2. Applicability of interest provisions effective from 1996 to imports made in 1992.
3. Legitimacy of freezing the appellant's bank accounts.
4. Contempt proceedings against the Commissioner.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant argued that the assessment order was confirmed without an opportunity for a hearing, and the order was served years later in December 2006. The department issued a less charge demand and adjudication order, but the appellant claimed they did not receive these notices, thus denying them a chance to defend themselves. The Tribunal noted that the department issued the demand and adjudication orders and sent them by post, with copies to the CHA, which were not returned undelivered. However, the Tribunal found that only two notices were given over three years, showing a lackadaisical approach, and thus, principles of natural justice were violated in spirit, if not in letter. Despite procedural compliance, the Tribunal acknowledged that both parties contributed to the situation where natural justice was compromised.

2. Applicability of Interest Provisions:
The appellant contended that interest provisions introduced on 26/05/1995 should not apply retrospectively to imports made in 1992. The Tribunal examined Section 28AA of the Customs Act, which mandates interest if duty is unpaid within three months of determination. The Commissioner argued that interest was due from 03/02/1997, three months post-adjudication. The Tribunal, referencing several Supreme Court cases, determined that interest provisions cannot be applied retrospectively to events before the legislation's enactment. Thus, the appellant was not liable for interest on duty confirmed for imports made in 1992.

3. Legitimacy of Freezing Bank Accounts:
The Tribunal reviewed the department's action of freezing the appellant's bank accounts under Section 142 of the Customs Act. The provision allows for the recovery of government dues by detaining or selling the defaulter's property. The Tribunal found no infirmity in the Commissioner’s orders to freeze accounts for duty recovery. However, freezing accounts to recover non-payable interest was deemed incorrect.

4. Contempt Proceedings Against the Commissioner:
The Tribunal noted that the CESTAT had directed the Chief Commissioner to resolve the litigation and had summoned the Commissioner. The Commissioner passed an order on 14/12/2017 after hearing the appellant and defreezed some accounts. Given the passage of time and the steps taken, the Tribunal concluded that pursuing contempt proceedings would not serve any purpose and would only prolong litigation. The Tribunal advised officers to judiciously follow legal provisions in future dealings.

Conclusion:
The appeal was allowed to the extent of setting aside the interest. The duty of ?1,02,501 was confirmed as payable. The interest paid by the appellant was ordered to be refunded with applicable interest within four weeks of the order. The Tribunal emphasized the need for judicious conduct by officers in handling such matters.