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TMI Blog2020 (10) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded from one D.Bhaskaran, a director of the petitioner herein, and earlier a partner in one, Horizon Forwarders. Horizon Forwarders had initially been clearing the import consignments of PNN Steel Private Limited till the petitioner had obtained an CHA licence, after which such activity was carried on by the petitioner. 3. I consciously refrain from referring to the voluminous details and particulars of imports and the alleged discrepancies found therein, since they are not material in the light of my conclusion on the legal grounds adduced by the petitioner challenging the impugned order. 4. Suffice it to say that after a detailed examination of the transactions of import, the assessing authority refers, at para 26 of the show cause notice dated 09.05.2017 to the fact that the importer had made payments towards differential duty and interest on various dates between 03.02.2014 and 02.04.2014. Thereafter he identifies the issues arising in the proceedings and calls upon the petitioner to show cause why penalty under Section 112 of the Act not be imposed for abetting imports that are alleged to be in violation of the provisions of the Act and various notifications and for fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is less than rupees one hundred. (2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (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 sub-section (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 sub-section (1) shall be deemed to be concluded. (3) Where the proper officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 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 sub-section and the period of two years shall be computed from the date of receipt of information under sub-section (5). (7) In computing the period of two years referred to in clause (a) of sub-section (1) or five years referred to in sub-section (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 of duty or interest under sub-section (8),- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 10. Sub-section (5) states that where a show cause notice, as referred toin sub-section (4), is received by an assessee, the assessee may choose to pay the duty in full or in part as accepted by him along with interest under Section 28AA and penalty equal to 15% of the duty specified or so accepted by the assessee within 30 days of the receipt of the notice, and duly intimate the Officer of such payment. 11. Sub-section (6) states that in cases of remittance as contemplated under sub-section (5), a determination of the proper amount of duty and interest shall be made by the officer and if he is of the view that the amount of duty, interest and penalty has been paid in full, then the matter shall be treated as conclusive as regards all matters raised in the SCN except without prejudice to the provisions of Sections 135, 135A and 140 of the Act providing for 'Evasion of duty or prohibitions', 'Preparation' and 'Offences by companies' that, if the assessee were a company, deems every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of its business, to also be guilty of the offence and to be proceeded against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those cases of regular assessment simplicitor and not an assessment involving alleged collusion, mis-statement or suppression of facts. 17. In fine, I am of the considered view that the benefit extended to an assessee under section 28(2) is available only in those situations falling under clauses (i) and (ii) of section 28(1)(b), that is, either where the assessee self-computes or seeks a computation from the proper officer of the duty and interest payable, and remits the same voluntarily, even prior to the receipt of a SCN from the officer and not in any other situation contemplated under Section 28. In the present case, the SCN has been issued invoking the provisions of section 28(5) which contemplates an alternate scheme of assessment as I have elaborated in the preceding paragraphs. 18. Learned counsel for the petitioner would argue that this was not a case of suppression at all and the invocation of section 28(4) was itself erroneous. However, both the SCN as well as the impugned order of assessment contain voluminous factual assertions and allegations in regard to collusion, wilful mis-statement and suppression of facts on the part of the petitioner, and it is certainly no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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