9911796707
TMI Blog2020 (10) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... reiterate the conclusion in paragraphs 12 to 17 above, the benefit under Section 28(2) is available only in the case of a regular assessment contemplated made under Section 28(1). This is made clear by the explicit exclusion in Section 28(1) of cases of collusion, wilful mis-statement or suppression of facts for the initiation of which revenue has the benefit of an extended limitation of five years. Furthermore, section 28(2) makes reference to the duty and interest remitted by the assessee computed in terms of Section 28(1), that is, in cases where there is no allegation of collusion, mis-statement or suppression of facts - The placement of Section 28(2), immediately after 28(1) is also, to my mind, supportive of the aforesaid conclusion. It is evident that it is only the remittance of duty and interest as referred to in sub-section (1) that is addressed in sub-section (2) of Section 28. The petitioner is permitted to file an appeal challenging the impugned order before the appellate authority within a period of two weeks from the date of uploading of this order. Such appeal, if filed within the period as stated hereinbefore, shall be received by the registry of the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs 13(d) and (e) of the Customs House Agents Licensing Regulations, 2004. 5. On 27.09.2018, the petitioner replies to the show cause notice. The reply is detailed and refers to various factual particulars of the transactions engaged in by the parties. Interalia, the petitioner raises the bar of limitation, as according to it, there was no fraud, collusion or willful mis-statement/suppression of fact justifying the invocation of the provisions of Section 28(4) of the Act providing for an extended period of limitation of five years. Moreover, since the differential duty along with interest had been remitted even in 2014, the petitioner submitted that the show cause notice ought not to have been issued at all, presumably making reference to the provisions of Section 28(2) of the Act. 6. The impugned order came to be passed on 24.12.2018 confirming the levy of penalty upon the petitioner in terms of Section 112(a) of the Act for abetment of offence committed by the importer as against which the petitioner has filed the present writ petition. 7. Section 28 sets out the scheme of assessment under the Customs Act and reads as follows: SECTION 28. Recovery of duties not levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of 57[two years] shall be computed from the date of receipt of information under sub-section (2). (4) Where any duty has not been levied or not paid or has been short-levied or short-paid] or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of,- (a) collusion; or (b) any wilful mis-statement; or(c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. (5) Where any duty has not been levied or not paid or has been short-levied or short paid or the interest has not been charged or has been part-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty or interest under sub-section (8),- (a) within six months from the date of notice, where it is possible to do so, in respect of cases falling under clause (a) of sub- section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4). (10) Where an order determining the duty is passed by the proper officer under this section, the person liable to pay the said duty shall pay the amount so determined along with the interest due on such amount whether or not the amount of interest is specified separately. . . . . 8. Section 28 provides for assessments to be framed in two specific situations and I refer to the same as regular and special assessments respectively. Sub-section (1) sets out a limitation of two years for the initiation of a regular assessment specifying explicitly that this limitation, of two years, will not cover cases of assessments involving fraud, mis-statement or collusion. In the case of a regular assessment, a show cause notice (SCN) may to be issued calling upon the assessee to respond to why the demand set out therein not be raised upon it upon receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, to also be guilty of the offence and to be proceeded against and punished accordingly. This, in my considered view, offers a benefit in cases of special assessments along the lines of the benefit offered to a regular assessment under section 28(2). 12. There are thus two separate and distinct streams of assessments with corresponding beneficial offers extended in either cases. the Act naturally, contemplates a more rigorous procedure for assessment in cases of apprehension/allegations of collusion, wilful mis-statement or suppression of facts by an assessee. 13. Sub clause (ii) of sub-section (6) provides for a situation where, upon determination, the Officer finds that the amount remitted by the assessee falls short of the amount actually payable and in such a case, determination of the proper amount of duty shall be made as though it were a regular assessment under Section 28(1)(a) within two years from the date of receipt of information under sub-section (5) of Section 28. Sub-section (7) states that in computing the demand in terms of sub-section (4), the period of stay granted by a Court or Tribunal shall be excluded. 14. Section 28(8) provides for an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and suppression of facts on the part of the petitioner, and it is certainly not appropriate for me to go into such disputed questions of facts in writ proceedings. This is best left for the appellate authority. The determination of the proper period of limitation involves mixed questions of facts and law and necessary enquiry upon the facts to determine whether the petitioner satisfies the conditions precedent under Section 28(5) is best left to the appellate authority to take a decision after due examination of all relevant facts and details. I am thus not inclined to interfere in the impugned order on this aspect. 19. The second legal proposition put forth by the petitioner is that the issuance of the show cause notice was itself contrary to law in the light of the admitted position that the importer has remitted the differential duty and interest voluntarily in 2014, long before the issuance of the show cause notice. This argument is made relying upon the provisions of Section 28(2) of the Act. 20. This submission is not acceptable for the reason that it does not take note of the scheme of assessment under Section 28 as noted and explained by me in the preceding paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
