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TMI Blog2017 (8) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... mount within the purview of 5 years period so prescribed. The position of law of Bill of Entry beyond the period of 5 years is clear. Therefore, on this sole ground, we are inclined to consider the case of the Petitioner as contended - The bar of Section 127J needs to be considered from the point of the authority in question. But, in view of above observation on admitted position on record, as case is made out, we are inclined to invoke Article 226 of the Constitution of India, in the present case. The parties cannot be remedyless if case is made out. The Petitioner has no other alternative and efficacious remedy and as the writ petition against such order passed by the Settlement Commissioner in Settlement cases is maintainable - petition maintained. - Writ Petition No. 10245 of 2016 - - - Dated:- 4-8-2017 - Anoop V. Mohta And Smt. Anuja Prabhudessai, JJ. Mr. Prakash Shah i/by PDS Legal for the petitioners Mr. Pradeep S. Jetly for respondents JUDGMENT ( Per Anoop V. Mohta, J. ) 1 The matter is arising out of Customs Act, 1962 (for short, Customs Act). 2 The Petitioners have filed the present Petition and prayed to quash and set aside impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odium Saccharin supplied by the said High Trans Corporation was not of Taiwan origin but was of China origin and that the same accordingly attracted antidumping duty under notification no. 41/2007 dated 1932007. 5 On 22.03.2012, Petitioner No.1 forwarded 8 Pay Orders, the particular whereof are set out in the said letter, aggregating to ₹ 1,98,11,000/, without prejudice to the rights and contentions of the Petitioners along with statement of Bills of Entry Nos and dates in respect of which the said amount was deposited. On 26.03.2012, the Deputy Director (F Cell), DRI MZU, Mumbai forwarded the said Pay Orders aggregating to ₹ 1,98,11,000/to the Cashier, Accounts Department, JNPT, Nhava Sheva Accounts the Petitioners for depositing in the Government Treasury towards customs duty. On 16.05.2012, vide without prejudice letter, the Petitioners informed the Additional Director General, that the Petitioners had deposited ₹ 1,98,11,000/towards the duty amount against the import of Sodium Saccharin under the Bills of Entry mentioned therein. 6 On 17.05.2012, the Additional Director General, DRI, Mumbai, thereafter issued to Petitioner No.1 Show Cause Notice, inter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 710462 dated 3.4.2007, which was beyond the period of five years. After adjusting the said amounts of ₹ 1,82,85,223/and ₹ 16,99,981/= ₹ 1,99,85,204/out of the amount of ₹ 2,32,06,530/paid by the Applicants, the balance ₹ 32,21,326/has been ordered to be appropriated towards interest liability. The Revenue was directed to calculate the balance due interest and communicate the same to the Applicants. b) Penalty of ₹ 7,00,000/was imposed on Petitioner No.1 and penalty of ₹ 50,000/has been imposed on Petitioner No.2. The penalties of ₹ 50,000.00 each was imposed on the intending agents. The penalties imposed by Respondent No.3 have been deposited by the Petitioners. 10 On 13.07.2016, the Petitioners received a letter F No. DRI/MZU/F/10/2011/Settlement dated 12.07.2016 from the Assistant Director, DRI giving calculation of the balance amount which according to the DRI is required to be paid by the Petitioners. The Assistant Director, after referring to the paragraph 9.1 of the Order No.92/Final Order/Cus/SBR/2016 of Respondent No.3, inter alia, directed Petitioner No.1 to pay ₹ 28,72,835.41 immediately and if already paid, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s than rupees one hundred.] (2) The person who has paid the duty along with interest or amount of interest under clause (b) of subsection (1) shall inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that subsection in respect of the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest: [Provided that where notice under clause (a) of subsection (1) has been served and the proper officer is of the opinion that the amount of duty along with interest payable thereon under section 28AA or the amount of interest, as the case may be, as specified in the notice, has been paid in full within thirty days from the date of receipt of the notice, no penalty shall be levied and the proceedings against such person or other persons to whom the said notice is served under clause (a) of subsection (1) shall be deemed to be concluded.] (3) Where the proper officer is of the opinion that the amount paid under clause (b) of subsection (1) falls short of the amount actually payable, then, he shall proceed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dice to the provisions of sections 135, 135A and 140 be deemed to be conclusive as to the matters stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then, the proper officer shall proceed to issue the notice as provided for in clause (a) of subsection (1) in respect of such amount which falls short of the amount actually payable in the manner specified under that subsection and the period of [two years] shall be computed from the date of receipt of information under subsection (5). (7) In computing the period of [two years] referred to in clause (a) of subsection (1) or five years referred to in subsection (4), the period during which there was any stay by an order of a court or tribunal in respect of payment of such duty or interest shall be excluded. (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice. (9) The proper officer shall determine the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill, 2015 receives the assent of the President, shall, without prejudice to the provisions of sections 135, 135A and 140, as may be applicable, be deemed to be concluded, if the payment of duty, interest and penalty under the proviso to subsection (2) or under subsection (5), as the case may be, is made in full within thirty days from the date on which such assent is received.] 14 We are inclined to consider the basic issue relating to adjustment of an amount of ₹ 16,99,981/which is applicable to goods cleared through Bill dated 3.4.2007. The demand is stated to be time barred. Admittedly the said amount was adjusted by making voluntary payment along with others by the Petitioner though it was time barred. The law is settled that the Revenue Department/Authorities are not required to issue a demand beyond 5 years period under Section 28 of the Customs Act. By impugned order dated 30.05.2016, the said amount is adjusted towards antidumping duty on goods imported apart from the other order. 15 The Settlement Commissioner, while passing the final order on Petitioner's Application in para 2.2 referring to Chart even noted the four bills of entry beyond the period o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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