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TMI Blog2012 (11) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... much as, the appellant/importer did not have the requisite restriction for importation. As a result, the Adjudicating Authority by order dated 8-9-2008 directed confiscation of the said goods under Section 111(d) and (m) of the Customs Act with an option to the importer to redeem the goods on payment of redemption fine of Rs. 1,70,000/- also imposed penalty of Rs. 58,000/- on the importer under Section 112 of the Customs Act. The said order was accepted by the importer and on the next day the redemption fine and penalty was paid by the importer. Thereafter, on 11-9-2008, Directorate of Revenue Intelligence, informed the Commissioner about the intelligence received by them that the goods declaration under Bill of Entry had been assessed on the basis of Fraudulent information furnished by the importer and the examination of the goods by the departmental officer at the time of assessment was not adequate to unearth such misdeclaration. 3. Immediately the Commissioner called for the file and after perusing the same passed it to DRI for further investigation. It appears that DRI subjected the imported goods to a more intensive investigation by bursting the bales and allegedly unea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant notwithstanding the fact that such allegation of fraud was never made at the time of initiation of review proceedings or even subsequently at the appellate stage. 7. Mr. Shibdas Banerjee, Senior Advocate appearing for the appellant/importer submitted that the order of assessment was passed on 8-9-2008 and the same was communicated to all concerned electronically and otherwise. In fact, in due compliance of such order, his client deposited the redemption fine and penalty. He further submitted that the purported issuance of the subsequent reasoned order of assessment passed on 16-2-2009 is contrary to law and in that practice and procedure of the department cannot override the clear provisions of law. He submitted it is evident that non-speaking order dated 8-9-2008 was duly communicated to the Commissioner and the starting point of limitation for the purpose of sub-section (3) of Section 129D of the Customs Act would be from that date and not on any subsequent date when the Adjudicating Authority chose to supply reasons to such order and communicate the same. 8. Drawing the attention of this Court to Section 17(5) of the Act he submitted that ordinarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) E.L.T. 12 (S.C.) (Union of India v. R.C. Fabrics (P) Ltd.). 14. In order to substantiate her contention that the order dated 8-9-2008 had not been communicated to the Commissioner prior to the passing of the subsequent reasoned order dated 16-2-2009 we gave an opportunity to Ms. Bhargava to produce records of the instant case from the Customs Department. 15. In spite of such opportunity, the instant case was not produced before us and therefore we were constrained to proceed on the basis of the materials of record. 16. The core issue to be decided in this appeal is when does the period of limitation for passing the order to review under Section 129D of the Customs Act commence ? 17. Section 129D of the Customs Act provides that the Committee of Chief Commissioners of Customs or Commissioner of Customs may of its own motion call for records of any proceeding in which the Adjudicating Authority subordinating to him has passed any decision or order for the purpose of satisfying himself as to the legality of propriety of such decision or order and may by order direct the appropriate authority to apply to the Commissioner (Appeals) for determination of such po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the Commissioner was not communicated the order of assessment prior to the issuance of the subsequent reasoned order on 24-2-2009 is therefore contrary to the factual findings in the impugned order itself. Furthermore the submission that it is the prevalent practise in the Department to pass a subsequent reasoned order on a later date and that the starting point of limitation for the purpose of Section 129D of the Customs Act merits outright rejection. 21. It is a settled principle that when the law requires a thing to be done in a particular manner it must be done in that manner alone or not at all (see Nazir Ahmed v. King Emperor reported in AIR 1936 PC 253). In the instant case, the order of assessment was made on 8-9-2008. From the finding of the fact by the Tribunal it appears that the file containing such order was placed before the Commissioner on or about 11-9-2008 who perused the same (affirmed information nor production of original) before passing it on to D.R.I. If that be so, then the order of adjudication has to be held to have been communicated to the Commissioner on or about 11-9-2008 and not on 24-2-2009 when the subsequent reasoned order was sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of fact of an order, no such legislative latitude is provided in Section 129D of the said Act. If the legislative so intended, it would have made similar provisions in Section 129D of the Customs Act as in Section 28 of the said Act. Further the Customs Act being a fiscal statute we are inclined to give a strict interpretation to the provisions of Section 129D of the Act and not read into the said provision things which the legislative did not specifically provide (See Commissioner of Sales Tax, U.P. v. Modi Sugar Mills Ltd. reported in AIR 1961 SC 1047 para 11). We are of the opinion that the period of limitation in Section 129D of the Act cannot be enlarged in cases of fraud since there is no such provision as in Section 28 of the Customs Act. 26. We further hold that the plea of existence of a departmental practice of subsequently passing a reasoned order and the claim that the subsequent communication of such reasoned order ought to be starting point of limitation in respect of Section 129D of the Customs Act is wholly untenable. 27. In the event such argument is to be accepted then we would have to rewrite the clear and ambiguous words of the statute where req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option was exercised the ownership of the goods cannot be said to have been passed on to the Government. According to us, once the option is exercised, ownership of the same reverts to the importer (here). This would be clear from the careful and close reading of Section 125 of the said Act particularly from the Sections mentioned therein and we properly quote the following : : ........shall in the case of any other goods, give to the owner of the goods (or, where such owner is not known, the person from whose possession or custody of such goods have been seized, an option to pay in lieu of confiscation such fine the said officer think......." 31. We, therefore, answer the question no. 1 in the affirmative and hold that the Commissioner had exercised his power of limitation much after the expiration of the period specified in subsection (3) of Section 129D of the Customs Act and that such period of limitation could not be extended with reference to Section 28 of the said Act. 32. With regard to the question no. 2, we hold that, unlike Section 28 of the Customs Act, the allegations of fraud cannot alter the period of limitation specified in subsection (3) of Section 12 ..... 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