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TMI Blog2016 (5) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... closure of proceedings under Customs Act may conclude all proceedings under other Acts also is fallacious. He is acting under the powers vested under Customs Act, 1962. While may be vested with some powers under the provisions of allied Acts, his role comes from the Customs Act. Nothing prevents respective competent authority under other Act if there is any action warranted to be taken against any person for violation of provisions of specific law. Having deposited the full amount of duty, interest and 25% of the penalty, no further proceedings were required to be continued in terms of the provisions of Section 28(1A) and the first proviso to Section 28(1A). Therefore the impugned order has no leg to stand and is accordingly set aside. - Decided in favour of appellant with consequential relief - Customs Appeal Nos.72, 73, 84-86, 158, 159, 183, 184 of 2011 & Misc Application No.56191, 56194, 56192, 56193 of 2014 - Final Order Nos. C/A/51307-51315/2016-CU(DB) - Dated:- 27-4-2016 - MS. ARCHANA WADHWA, JUDICIAL MEMBER AND MR. B. RAVICHANDRAN, TECHNICAL MEMBER For the Petitioner : Shri C. Hari Shankar, Senior Advocate with Shri S. Sunil, Advocate. For the Respondent : Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during pendency of the matter before the Commissioner,M/s Omkar Jewellers and M/s Orbit Gold filed writ petition before Hon ble Delhi High Court. The order dated 16.9.2010 of the Hon ble High Court of Delhi in respect of the said two petitioners is as under: In the course of hearing of these two writ petitions, it is submitted by M/s C. Hari Shankar, learned Counsel for petitioners that he may be permitted to file an application before the Commissioner of Customs, Air Cargo Exports, New Delhi, respondent No.2 herein, as he is entitled to release of goods in view of total compliance of provisions of Section 28(1A) of Customs Act, 1962. Regard being had to be aforesaid prayer, we are only inclined to direct , if an application is preferred within a week hence by the petitioners before respondent no.2, the respondent no.2 shall, after affording an opportunity of hearing to petitioners or its authorized representative, decide the matter as per law within a period of three weeks thereafter. Matter be listed on 18th November, 2010. 5. Thereafter, the matter was adjudicated by the Commissioner vide his impugned order dated 28.1.201. By not agreeing with the appellant s contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 140, be deemed to be conclusive as to the matters stated therein. 9. As is seen from above, the first proviso to Section 28(1A) provides deemed conclusion of the proceeding pending against noticee if the payment as regard the duty, interest and 25% of the penalty stands made by the noticee within a period 30 days of the receipt of the show cause notice. It is further seen that the said provision is applicable even in cases of demand having been arisen on account of collusion, willful misstatement or suppression, meaning thereby that the said law is applicable in respect of even illegal activity of assessee which stand accepted by him and the duty interest and part of penalty stand paid. Further, the said deposits should be within a period 30 days from the date of the receipt of the notice. In such a scenario , the proviso to the said Section 28(1A) provides for deeming status of conclusion of the proceeding except the proceeding in respect of Sections 135, 135A and 140. 10. In the present cases, the show cause notice was issued to the appellants on 4.2.2010 and thereafter on the application made by the appellant , document enclosed with the said show cause notice was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be deemed as concluded thus not allowing the adjudicating authority to proceed ahead with the adjudication of the other aspects which may be involved in the proceeding. The language of the said Section is unequivocal in ordaining that in such scenario the proceeding in respect of such person and all other persons also, shall be deemed to be conclusive as the matters stated therein. The expression proceeding stands interpreted by the Hon ble Supreme Court in the case of P L Kantha Rao and others vs. State of A.P. and others - (1995) 2 Supreme Court Cases 471 wherein it was observed that the word proceeding engrafted in Section 29 of the A.P. Administrative Tribunal must be understood in a broader perspective. The word proceeding would depend upon the scope of the enactment wherein the expression is used with reference to a particular context where it occurs. The proviso to Section 28(1A) uses the expression proceeding which in our view is required to be understood in broader manner keeping in view the legislative intention. Legislative intent is clear from the Circular No.831/8/2006-CX dated 26.7.2006 issued by the Board. Relevant paragraph is reproduced below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed that the words other persons used in said Section are to include co-noticees/persons llinked with allegation of contravention of Central Excise Rules, 1944. By observing so, the Tribunal rejected the Revenue s stand that the proceeding for imposition of separate penalty under Rule 26 would continue. It was held that adopting Revenues stand would amount to making workds other persons redundant. The proceedings against the main noticee having been concluded , there was no sense in continuing proceedings under Rule 26 against other persons. To the same effect is another decision of the Tribunal in the case of C.C.E., Raipur vs. Jay Prakash Agarwal - 2013 (297) ELT 554 (Tri-Del.). By taking note of the Board Circular No.831/8/2006-EX, dated 26.7.2006 it was observed that the same clarifies intention of the legislature so as to give opportunity to manufacturer to settle the duty dispute immediately on receipt of show cause notice thereby avoiding litigation. 13. Though we note that the above decisions were mainly in the context of the Central Excise provisions but Section 11A of the said Act is pari materia to Section 28(1A) of the Customs Act. As such , the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is acting under the powers vested under Customs Act, 1962. While may be vested with some powers under the provisions of allied Acts, his role comes from the Customs Act. Nothing prevents respective competent authority under other Act if there is any action warranted to be taken against any person for violation of provisions of specific law. 16. In view of our above analyses in as much as we agree with the ld. Advocate appearing for the appellants that M/s Omkar Jewellery and M/s Orbit Gold having deposited the full amount of duty, interest and 25% of the penalty, no further proceedings were required to be continued in terms of the provisions of Section 28(1A), the first proviso to Section 28(1A), the impugned order has no leg to stand. The same is accordingly set aside. All the appeals are allowed with consequential relief to the appellants. 17. As regards the Revenue s appeals the same are relatable to the non-imposition of penalties on some of the noticees as also by reducing 25% of penalty in respect of the other. Inasmuch as we have already held that proceedings were not required to be continued and have allowed the assessees appeals on the said grounds itself, Revenue s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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