9911796707
TMI Blog2021 (2) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... country of origin, therefore, the investigation was conducted. On the basis of the investigation, it was revealed the modus operandi of the appellants, whereby, it was found that the bicycles parts of China origin were routed through Malaysia port to avail wrongly the benefit of exemption notification issued under Preferential Trade Agreement which was admitted by the appellants; therefore, the show cause notices were issued and adjudicated on the basis of documents recovered and statements recorded during the course of investigation. The impugned demand were confirmed along with interest. A redemption fine was also imposed on provisionally released goods. In view of confiscation, penalties were imposed on both the appellants. Against the said order, the appellants are before us. 3.1 The ld. Counsel for the appellants submitted that the impugned order is not sustainable in the eyes of law as in this case, the show cause notices were issued on 07.10.2016, whereas adjudication has taken place on 28.05.2019 as per amended explanation 4 to Section 28 of the Customs Act, 1962 and as held by Hon'ble Punjab & Haryana High Court in the case of M/s Prabhat Fertilizers & Chemical Works vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y examined prior to clearance of goods. The goods allowed to be cleared without disturbing the self assessment made by the appellants which otherwise is re-assessment of the self assessment made by the appellants. Therefore, the question arises that whether the Revenue at this stage can re-assess exemption claim when goods are no more imported goods. There is no provision permitting re-assessment of claim of exemption and there is only remedy of appeal with both the parties. The assessing authority cannot re-assess claim of exemption and in case of any grievance, he has right to file appeal which the Revenue failed to do so. Therefore, on this ground itself, the appeals are to be allowed and the impugned order is to be set aside. 3.4 He further submitted that the whole case is based upon the documents/conversations recovered from emails which were taken during the investigation but the provisions of Section 138C of the Act has not been followed. The printouts as document are admissible only if accompanied by certificate in terms of Section 138C of the Act obtained at the time of taking printouts. Any documentary evidence by way of electronic record under the Act can be proved only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011. 4.3 He relied on the decision of Hon'ble Apex Court in the case of U.O.I. vs. Jain Shudh Vanaspati Ltd - 1996 (86) ELT 460 (SC) and on the decision of Hon'ble Madras High Court in the case of Venus Enterprises vs. C.C., Chennai - 2006 (199) ELT 405 (Mad.). He also relied on the decision of Hon'ble Apex Court in the case of C.C., Mumbai vs. Virgo Steels - 2002 (141) ELT 598 (SC) to say that the power of recovery duty which have escaped collection is a concomitant power arising out of levy of customs duty under Section 12 of the Act and same does not emanate from Section 28 of the Act and Section 28 only provided for procedure aspect for recovery of duty. 4.4 He further submitted that the well settled legal position is that demand of duty can be made under Section 28 without reviewing the assessment under Section 129(d) as has also been reiterated by this Tribunal in the case of Mahindra & Mahindra Ltd - 2014 (312) ELT 545 (Tri. Mumbai). 4.5 He further submitted that the relied upon documents i.e. emails which have been retrieved from web-based email accounts i.e. gmail.com stored on servers maintained by Google and not from emails stored in computers installed in the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or not? Issue (i) Whether the show cause notices issued on 07.10.2016 and adjudicated on 28.05.2019 shall stand vacated in terms of the explanation 4 to Section 28 of the Customs Act, 1962 or not? 7. To deal the issue, we have to see the provisions of Section 28 of the Customs Act, 1962 and explanation 4 w.e.f. 29.03.2018 which is as follows: "Un-amended Section 28 read as under: SECTION 28. Recovery of duties not levied or not paid or short-levied or shortpaid or erroneously refunded. - (1) Where any duty has not been levied or has been short-levied or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been shortlevied 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; (b) the person chargeable with the duty or interest, may pay before servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of cases falling under sub-section (4). Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year: Provided further that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued. (9A) Notwithstanding anything contained in sub-section (9), where the proper officer is unable to determined the amount of duty or interest under sub-section (8) for the reason that - (a) an appeal in a similar matter of the same person or any other person is pending before the Appellate Tribunal or the High Court or the Supreme Court; or (b) an interim order of stay has been issued by the Appellate Tribunal or the High Court or the Supreme Court; or (c) the Board has, in a similar matter, issued specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 28 w.e.f. 28.03.2018, it is evident that authorities are bound to pass order within one year from the date of Show Cause Notice in cases of Custom Duty not paid/short levied and said period may be extended for a further period of one year by any officer senior in rank to the proper officer having regard to the circumstances under which proper officer was prevented from passing an order before the expiry/lapse of the initial stipulated one year. Still further in case any circumstance as noticed in Sub-section (9A) exists, the extended period of one year provided in Sub Section 9 shall commence from the date when such reason ceases to exist provided the proper officer informs the person concerned of the reason for such non determination of amount of duty or interest under Sub Section 8. Thus the only outcome of non adjudication by the proper officer within one year without invoking of Sub-section (9A) or within the extended period of one year, if any, by a senior officer in terms of the first proviso to Sub Section (9) would be lapsing of notice, as provided in the second proviso to the Sub Section (9) of the amended Section 28 of the 1962 Act. 15. The contention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11 of the PGST Act. It is also not dispute that the notices in the form ST XIV for the assessment years 1995-96 and 1996-97 were issued on 26.04.2001 and 21.04.2001 respectively. The assessment orders under Section11(3) assessing demand of tax for a sum of Rs. 18,18,318/- and Rs. 10,51,851/- for the respective assessment years was passed on 27.07.2001. Therefore it is not disputed that even if the three years period of limitation was to be computed w.e.f. 03.03.1998, the assessment orders for both the assessment years were beyond the period of limitation as per the amended provisions of Section 11(3) of the Act. It is also not disputed that the learned Tribunal has on consideration of the provisions of PGST Act and ratio of judgments of cited case law has upheld the contention of the petitioner dealer that the amended period of limitation provided under Sub Section (3) being a piece of procedural law would be applicable to the pending cases like the present case. Learned Tribunal has also held that the assessments made by the assessing authority are not legally sustainable. It is also the admitted case of the Stat that the aforesaid findings of the Tribunal have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2018, the legislature has made it clear that no Show Cause Notice shall be kept pending beyond a period of 1 year by the proper officer unless and until requirement of Sub-section (9A) are complied with or beyond the extended period of another one year by an order passed by any officer senior in rank to the proper officer detailing the circumstances which prevented the proper officer from passing the order within the initial period of one year. In the present writ petitions, the Respondent-DRI issued Show Cause Notice on 20.02.2009 (P-6) & 19.03.2009 (P-9) for short levied custom duty and interest due to mis-declaration of description and value of goods relating to the two partnership firms/petitioners and at that point of time the proper officer was required to pass an order within one year i.e. By 2010 where it was possible to do so. However after the Amendment w.e.f. 29.03.2018, the Respondent was bound either to pass an order within one year i.e. by 28.03.2019 in terms of clause (b) of Sub Section (9) of amended Section 28 or within the extended time of one year in terms of first proviso, which is concededly not the case at hand or the extended period in terms of requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e main writ petition was disposed of in view of our judgment in the case of Harkaran Dass Vedpal (Supra). The Applicant has filed SLP before Hon‟ble Supreme Court challenging order passed in the case of Harkaran Dass Vedpal (Supra). Recalling of our order dated 18.12.2019 in the present case would amount to recalling order passed in the case of Harkaran Dass Vedpal (Supra) which is already under challenge before Hon‟ble Supreme Court. Thus, present application deserves to be dismissed on this ground. 7. The judgment in Harkaran Dass Vedpal (Supra) is based upon two grounds/issues and Applicant is disputing only one issue. If the contention of Applicant is accepted still our order dated 18.12.2019 cannot be recalled because Applicant is not disputing second issue i.e. non adjudication within reasonable period of limitation. We though not required, yet deem it appropriate to deal with argument raised by Applicant and clarify our findings qua retroactive amendment. Section 28(9) was amended w.e.f. 29.03.2018 and amended Section provides that if duty is not determined within one year from the date of notice, the proceeding shall be deemed to have concluded. We have he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants on the above issue no.(i) itself, therefore, we are keeping open the remaining issues for future reference. Ordered accordingly. (Order pronounced on _______________) (ASHOK JINDAL) MEMBER (JUDICIAL) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) PER SANJIV SRIVASTAVA I have gone through the order prepared by the learned Member (Judicial). However even after long deliberation I am unable to agree with the same. In para 6 of the order learned brother has framed following three issues for consideration,- (i) Whether the show cause notices issued on 07.10.2016 and adjudicated on 28.05.2019 shall stand vacated in terms of the explanation 4 to Section 28 of the Customs Act, 1962 or not? (ii) Whether the show cause notice can be issued for recovery under Section 28 of the Customs Act, 1962 without challenging the assessment under Section 17 of the Customs Act 1962; and (iii) Whether in the absence of following the procedure prescribed under Section 138C of the Customs Act, 1962, the documents relied by the adjudicating authority are admissible or not? After framing the three issues for consideration he has discussed the first issue only and has proposed to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led. 21.12.2017 They have additionally deposited Rs. 7,63,017/- towards the demand of differential duty, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 26.10.2018 Principal Commissioner/ Commissioner Customs Ludhiana, is appointed as common adjudicating authority in the matter vide Notification No 22/2018-Cus (NT/CAA/DRI) 04.12.2018 Personal Hearing was fixed on 08.01.2019 08.01.2019 Record of Personal Hearing is reproduced "Sh. Ravinder Singh, Manager in case of M/s Gursam International, Ludhiana, appeared in person and submitted that some relied upon documents were not received from DRI Office, Ludhiana along with Show Cause Notice and submitted that they had requested DRI Office, Ludhiana to supply the documents at the earliest. He further requested to grant Personal Hearing after 1 months' time." 08.01.2019 Personal Hearing was fixed on 30.01.2019 30.01.2019 Vide their letter dated 30.01.2019, appellant submitted that they have still not received some of the relied upon documents and are in touch with the DRI Office to get the same at earliest. Thus they requested time of another one month for filing the reply and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant to make the final submissions in the matter vide his letter dated 02.04.2019, appellants replied vide their letter dated 09.04.2019, stating as follows: "Sub: Request for adjudication. Ref: Show Cause Notice F No. DRI/LDZU/856/(ENQ-4)(INT- 1) 2016/2458 dated 07.10.2016 issued to M/s Gursam International. On, 27.02.2019, personal hearing in respect of above said show cause notice was attended by Shri Deepak Gupta, Advocate on the behalf of undersigned. During hearing the counsel submitted interim reply and sought time to file final reply. It is hereby submitted that undersigned do not wish to file any further reply and is requesting yourself to adjudicate the above said Show Cause Notice on the basis of reply submitted on 27.02.2019 by the counsel without any further personal hearing." 4.0 Counsel for the Appellant argued that as per the amended Section 28(9) and the new Sub-section (9A) inserted w.e.f. 29.03.2018 by Section 63 of Finance Act, 2018, the show cause notice should have been adjudicated within period of one year from the date of issue. He relied upon the decisions of Hon'ble Punjab and Haryana High Court in case of in case of M/s Harkaran Dass Vedpal [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendments made by the Finance Act, 2018 was under consideration. In that case there was delay of more than 16 years in the adjudication of the matter, and Hon'ble High Court decided the issue holding that when there is no express time limit provided for adjudication of the Show Cause Notice, the adjudication proceedings should have been concluded within a reasonable period of time, and delay of 16 years in adjudication is not a reasonable period. For holding so they relied upon the decision of the Apex Court in the case of Bhatinda District Co-op. Milk P. Union Limited's *2007 (217) ELT 325 (SC)+ wherein Hon'ble Apex Court has held "17. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors." 5.3 In the case of Harkaran Dass Vedpal [2019 (368) ELT 546 (P & H)], while following the ratio of GPI Textiles, that there has been unreasonable delay in the adjudication of the show cause notices, Hon'ble High Court has also taken the note of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the Counsel for the respondents that amended Section 28 is not applicable in the case of petitioners deserves to be rejected because amendment is not retrospective but it is certainly retroactive. Mandatory limitation would be applicable treating pending show cause notice as if issued on 29-3-2018. The Division Bench judgment of this Court, cited by Counsel for the petitioner, in Ballarpur's case, dealt with Section 11 of the Punjab General Sales Tax Act, 1948 (for short 'PGST Act'). Under Section 11 of PGST Act, 1948, prior to 3-3-1998 no limitation period for framing assessment was prescribed and assessments for the period prior to 1998 were pending. While dealing with question of application of said limitation period of 3 years to assessment years falling prior to 1997-98 in view of the amended provision providing a three year limitation, this Court in the case of Ballarpur Industries Ltd. v. State of Punjab, (2010) 35 PHT 5 (P&H) decided in favour of the assessee and held that assessment of any year falling prior to 1997-98 shall be time-barred if it is framed after the expiry of 3 years from 3-3-1998 i.e. date on which limitation period was prescribed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenged by the Sale Tax/Department/Revenue. Thus, we do not consider it necessary to go into the question as to whether the amended provisions of sub-section (1) and (3) of Section 11 providing a period of limitation would apply to the pending assessments for the years prior to 3-3-1998 or not as even if the amended provisions are made applicable prospectively and limitation of three years is assumed to commence w.e.f. 3-3-1998, admittedly, the assessment orders dated 27-7-2001 are clearly beyond the period of limitation of three years and thus not sustainable in the eyes of law. Hence, there is no ascertainment/determination of the amount of tax due for the said two assessment years either by the assessee petitioner company under sub-section (4) of Section 10 or by the Assessing Authority under Section 11 of the PGST Act. Therefore, in view of the above discussions, we are of the considered opinion that the findings recorded by Learned Tribunal vide its impugned order (Annexure P-15) that there exists no justification for giving any relief to the petitioner company even after taking into account the limitation concept on the ground that the petitioner company cannot be absolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of requirement of sub-section (9A) which also is not the case at hand. Hence, the inevitable conclusion is that the show cause notices (P-6) and (P-9) in respective writ petitions will have to be accepted as lapsed." 5.4 Admittedly in the case of appellants the Show Cause Notice has been issued on 07.10.2016, and adjudicated on 28.05.2019 pursuant to appointment of Principal Commissioner/ Commissioner Customs Ludhiana as common adjudicating authority on 26.10.2018 and filing of final reply by the appellant on 09.04.2019. The present case cannot be said to be the case on unreasonable delay as the matter was taken up for adjudication by the common adjudicating authority as soon as he was appointed. Further it is also observed that the appellants had deliberately delayed the adjudication process, by not filing the reply to show cause notice within time. It is not even the case of the appellant that they have done what was expected of them for the early disposal of the show cause notice issued to them. Reasonable time for exercise of the power vested in authority, etc are concepts which flow from the principles of equity and good conscience and cannot be the defence in the case whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018 which would be governed by earlier provision of Section 28(9) before being amended. Hon'ble High court has not decided any issue where show cause notices was falling within this class as per Explanation 4, as introduced w.e.f. 29.03.2018, have been considered. Since the issue of the show cause notice issued during the period 14.05.2015 to 29.03.2018, was not even considered by the Hon'ble High Court this decision to is distinguishable. When the matter was argued before us on 26.02.2020, a specific query was made by the bench to the counsel with regards to the applicability of the said decisions to the facts of the present case, and in reply learned counsel, had agreed that these decisions do not decide the issue for the class of show notices issued between 14.05.2015 to 29.03.2018, which are covered by the explanation 4. The order sheet for the hearing on 26.02.2020 is reproduced below: "Specific query was put to the Ld. advocate as to whether in the cases decided by the High Court and referred by him during the course of arguments whether any show cause notice pertain to the period covered by explanation 4 to Section 28 of the Customs Act, 1962. Ld. Counsel admitted and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be bound to adjudicate within one year from 29.3.2018. In the present case, show cause notice was issued on 7.10.2016 and was bound to be adjudicated by 29.3.2019 whereas impugned order was passed on 28.5.2019. The show cause notice dated 7.10.2016 stands vacated on 29.3.2019, thus impugned order is liable to be quashed on this sole ground." This order of Hon'ble High Court is in an application moved by the department for the recall of the order earlier passed by the High Court, following the Harkaran Dass Vedpal's decision. In this order high court has only explained their earlier decision and expressed their inability to recall their earlier order in view of the subsequent amendments made in 2020. Hon'ble High Court has held that the first ground on which the order was based is for the reason of unreasonable delay in undertaking the adjudication proceedings, in respect of the show cause notice dated 22.06.2007, and that ground holds good. Hon'ble High Court thus records- "The judgment in Harkaran Dass Vedpal (Supra) is based upon two grounds/issues and Applicant is disputing only one issue. If the contention of Applicant is accepted still our order dated 18.12.2019 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g as follows: "11.There is no reason why any other indulgence need be shown to the assessees, who happen to be the owners of the seized goods. They must take recourse to the mechanism already provided for in the Act and the Rules for release, on a provisional basis, upon execution of a bond and furnishing of a security, in such manner and of such quantum (even upto the total value of goods involved), respectively, as may be prescribed or on payment of applicable taxes, interest and penalty payable, as the case may be, as predicated in Section 67(6) of the Act. In the interim orders passed by the High Court which are subject-matter of assail before this Court, the High Court has erroneously extricated the assessees concerned from paying the applicable tax amount in cash, which is contrary to the said provision. 12. In our opinion, therefore, the orders passed by the High Court which are contrary to the stated provisions shall not be given effect to by the authorities. Instead, the authorities shall process the claims of the concerned assessee afresh as per the express stipulations in Section 67 of the Act read with the relevant rules in that regard. In terms of this order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny judgement, decree or the Appellate Tribunal or any Court. Thus any declaration of the law by any court contrary to what has been stated by the legislature cannot be a valid declaration to the extent of declaration made by the legislature. 5.9 Hon'ble Supreme Court has in the case of Raghuvar India Ltd [2000 (118) ELT 311 (SC)] held as follows: "13. Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where there is really none, though Courts may always hold when any such exercise of power had the effect of disturbing rights of a citizen that it should be exercised within a reasonable period." 5.10 Thus in my view there is no merit in the submission made by the counsel to the effect that the Show Cause Notice dated 7.10.2016 should have been adjudicated by 29.03.2019, in view of the decisions of Hon'ble High Court in case of Harkaran Dass Vedpal. I also find that in the present case the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The matter was referred to larger bench in the case of IPCL [2004 (169) E.L.T. 267 (Tri. - LB)], and larger bench decided the matter holding as follows: "6.The observation of the Bench that if the Tribunal grants further extension of stay beyond the period of 180 days the amendment would become redundant is also not justified. A similar contention raised in regard to sub-section (2A) of Section 254 of the Income Tax Act was not accepted by the Income Tax Appellate Tribunal in Centre for Women's Development Studies. The inherent jurisdiction of the Tribunal to grant interim relief so as to make the ultimate relief effective cannot be curtailed indirectly by sub-section (2A). At the end of the period of 180 days when the appellant makes an application for extension of the stay the Tribunal can always consider whether there is any change in the circumstances which would justify extension or modification of the stay. The Revenue gets an opportunity to bring to the notice of the Tribunal such changed circumstances e.g. a binding decision on the issue in its favour. 7.One of the decisions relied on in Kumar Cotton Mills is the decision of Delhi High Court in ITC v. UOI. In this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of recovery, the entire purpose of the appeal can be defeated if ultimately orders of the departmental authorities are set aside......... It is a firmly established rule that an express grant of statutory power carries with it by necessary implications the authority to use all reasonable means to make such grant effective (Suthernland's Statutory Construction, third edition, Articles 5402 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective." 8. In Themis Pharmaceuticals the Bench took the view that the ratio of the decision in ITO v. M.K. Mohammed Kunhi will not be applicable while considering the issue of jurisdiction of this Tribunal in granting stay. In coming to the above conclusion reliance was placed on a decision of the Orissa High Court in CCE & C v. Golden Hind Shipping (India) Pvt. Ltd., 1993 (68) E.L.T. 739 (Ori.). We will now examine the decision of the Orissa High Court. In the above case the issue that came up for consideration was whether CEGAT had the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm, modify or annul the decision or order appealed against also takes in its fold to pass such interim orders as are necessary in order to aid the main relief sought for in the appeal. To put it in other words, the interim relief is granted to preserve in status quo the rights of the parties (See Kihoto Hollohan). In Madan Gopal's case, it has been pointed out that the interim orders are passed in aid of the main relief. Therefore, it is quite inherent in the Appellate power and more so in the case of the CEGAT to pass such interim orders as are necessary for the purpose of ensuring that the main relief sought in the appeal is available to the party at the end of the proceeding. The fact that Section 129E only provides for relieving the appellant from the undue hardship that would be caused to him in depositing the duty and interest as demanded or penalty as levied, does not in any way take away the inherent power of the Appellate Tribunal to pass such interim orders as are necessary. This is only re-stated in Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982." 10.Income Tax Appellate Tribunal had occasion to consider an identical iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o held that the amendment did not in any way curtail the powers of the Tribunal to grant stay exceeding six months. 5.During the pendency of the appeal before this Court, the matter was referred to a Larger Bench of the Tribunal. The Larger Bench has by its decision reported in 2004 (169) E.L.T. 267 upheld the view impugned in this case. The decision of the Larger Bench has not been challenged by the Department being of the view that repeated special leave petition raising the same issue was unnecessary. 6.The sub-section which was introduced in terrorem cannot be construed as punishing the assessees for matters which may be completely beyond their control. For example, many of the Tribunals are not constituted and it is not possible for such Tribunals to dispose of matters. Occasionally by reason of other administrative exigencies for which the assessee cannot be held liable, the stay applications are not disposed within the time specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL v. Commissioner of Central Excise, Vadodara (supra) cannot be faulted. However we should not be understood as holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Textiles and Harkaran Das Vedpal, there was unreasonable and unexplained delay of more than fifteen years in undertaking the adjudication proceedings. Finding this delay of more than fifteen years in completing the adjudication proceedings as unreasonable, Hon'ble High Court has quashed the show cause notice itself. The issue of "reasonable time" in institution of proceedings or their conclusion has been subject matter of many decisions of the Hon'ble Supreme Court. In the case of Joseph Severance And Ors vs Benny Mathew And Ors [(2005(7) SCC 667)], has referred to various earlier decisions and observed as follows: "The basic issue is whether the suit was filed within a "reasonable time". As observed in Veerayee Ammal v. Seeni Ammal, [2002] 1 SCC 134, it is "looking at all the circumstances of the case; a "reasonable time" under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than `directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs., AIR (1951) SC 177 it was noted as follows : "As regards the other point, however, we are of the opinion that the decision of the trial court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the subordinate judge. It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 80,000 was advanced by way of loan to the defendant's second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds in possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction. 8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently though some other person. He need not do so if he has acquired title to the property from the licensor or from someone else lawfully claiming under hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is "Whether the show cause notice can be issued for recovery under Section 28 of the Customs Act, 1962 without challenging the assessment under Section 17 of the Customs Act 1962". 6.3 On this issue learned counsel for the appellant has submitted stating as follows: "That Section 28 deals with demand of duty not levied or short levied or not paid or short paid. It is a case of entitlement of exemption notification which can be denied only after re assessment of bill of entry. Section 28 does not deal with determination of entitlement of exemption. In civil law it may be called as execution of decree and it is well known fact that execution is meaningless without decree. There is no Section or Rule under Customs Act which prescribes mode, manner or method of redetermination of exemption notification. In the absence of power prescribed under the Rule or Act itself, the department has no authority to issue Show Cause Notice under Section 28 to re determine or hold any claim of exemption as duty not levied or short levied, not paid or short paid. It is settled law that no demand can be made in the absence of power/ mechanism prescribed under the Act or Rules made thereunder. Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Agreement whereas they were of Chinese origiv, which willfully resulted in short payment of Customs duty for which the Revenue has raised a demand under Section 28(4) ibid. The Appellants committed a fraud to avoid payment of appropriate customs duties which has been clearly established and they cannot try to hide behind any web of technicalities. The Supreme Court in case of Commissioner of Mumbai v. Virgo Steels -2002 (141) ELT 598 (S.C.) held that the power to recovery duty which has escaped collection is a concomitant power arising out of levy of customs duty under section 12 of the Act and the Same does not emanate from section 28 of the Act and that section 28 only provides for the procedural aspect for recovery of duty. B. The appellant in this ground of appeal is harping that the assessment has attained finality and has to be reviewed by way of filing appeal against the same before issuance of SCN for recovery of duty, which is against the well settled law. It is well settled law that SCN for recovery of Customs duty leviable but not paid can be issued under section 28 ibid subsequent to clearance under section 47 as held by the Honble Supreme Court in case of Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re- assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. 17 (6) Where re-assessment has not been done or a speaking order has not been passed on re- assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed Explanation.- For the removal of doubts, it is hereby declared that in cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 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 69[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 shortlevied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (2) or under sub-section (5), as the case may be, is made in full within thirty days from the date on which such assent is received. Explanation 4.- ............ Section 46 Entry of goods on importation. - (1) The importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting electronically to the proper officer a bill of entry for home consumption or warehousing in the prescribed form: Provided that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to make entry by presenting electronically, allow an entry to be presented in any other manner: Provided further that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment, at such rate, not below ten per cent and not exceeding thirty-six per cent per annum, as maybe fixed by the Central Government, by notification in the Official Gazette. Provided that the Central Government may, by notification in the Official Gazette, specify the class or classes of importers who shall pay such duty electronically: Provided further that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section: Provided also that] if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section. 6.6 Discussing the relationship and interplay between these provisions Hon'ble Supreme Court has in the case of Virgo Steel *2002 (141) ELT 598 (SC)] has held as follows: "8. We will next consider the requirement of Section 28 of the Act and the applicability of the principle of waiver to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a concomitant power arising out of the levy of customs duty under Section 12 of the Act, and the same does not emanate from Section 28 of the Act. In our opinion, Section 28 only provides for the procedural aspect for recovery of duty, hence, any irregularity committed by a proper Officer in following the procedure laid down in Section 28 would not denude that Officer of his jurisdiction to initiate action for recovery of escaped duty but it may make such proceedings initiated by that Officer voidable. In that view of the matter, in our opinion, the term "condition precedent" used in the case of Tin Plate Co. (supra) is referable to the procedural requirement of Section 28 and not to the jurisdictional aspect of the proper Officer to recover the escaped duty. In the said view of the matter, we are of the opinion that the law laid down by this Court in Tin Plate Co.'s case (supra) is that issuance of a notice under Section 28 is a mandatory requirement of that Section, with which we are in agreement. We also notice the very important fact that in that case the question of waiver did not arise and what was considered by this Court was the contention of the Revenue that a subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the order of reassessment. Further section 47 of the Act, also do not mandate that clearance of the goods will be only consequent upon the re-assessment of duty. Thus the order clearance of the goods under Section 47, will not automatically result in the conclusions of the proceedings of assessment as the definition of assessment as per Section 2(2) includes re-assessment. Section 17, as it existed then provides for the manner of assessment and verification of the goods which have been entered for importation, however section do not in any way lays down any time limit or limitation, in respect of the completion of assessment proceedings. Further neither Section 17 nor Section 47, makes it necessary that assessment proceedings should have been completed and finalized before the order of clearance of the goods is made under Section 47. The limitation in respect of initiation of the proceedings for completion of assessment is provided by the section 28 of the Act. Section 28 (1) and Section 28 (4) provide that in case where the Custom authorities are of the opinion that any duty and interest has been not levied or not paid or short levied or short paid, they will initiate the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962 and that of Jairath is in respect of Rule 16 of the Drawback Rules. Further in the case of ITC, Hon'ble Supreme Court has very clearly stated as follows: "43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression 'Any person' is of wider amplitude. The revenue, as well as assessee, can also prefer an appeal aggrieved by an order of assessment. It is not only the order of re-assessment which is appealable but the provisions of Section 128 make appealable any decision or order under the Act including that of self-assessment. The order of self-assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against "any order" which is of wide amplitude. The reasoning employed by the High Court is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any non levy/ nonpayment or short levy/ short payment of duty. In such a case where machinery provision has been specifically provided the decision of the Hon'ble Apex Court in case of Larsen & Toubro 2015 (39) STR 913 and of Hon'ble Punjab & Haryana High Court in case of Lakshya Media Pvt. Ltd. [2016 (4) PLR 455] do not advance the case of the appellants. Hon'ble Apex Court in case of Sayed Ali *+, wherein Hon'ble Apex Court has clearly stated that the proceedings under Section 28 are re-assessment proceedings. 16. In the present cases, the import manifest and the bill of entry having been filed before the Collectorate of Customs (Imports) Mumbai, the same having been assessed and clearance for home consumption having been allowed by the proper officer on importers executing bond, undertaking the obligation of export, in our opinion, the Collector of Customs (Preventive), not being a "proper officer" within the meaning of Section 2(34) of the Act, was not competent to issue show cause notice for reassessment under Section 28 of the Act. ....." 6.9 Rejecting the similar contentions as raised by the learned counsel for the appellant before us, Bombay bench of tribunal held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redundant. Hence we do not accept the ld. Counsel's contention that no show cause notice under Section 28 can be invoked after clearance of the goods by enhancing the declared value." 7.2 The said decision of the Tribunal was challenged before the Hon'ble High Court of Madras and the Hon'ble High Court of Madras upheld the decision of the Tribunal and observed as follows : "With regard to question No. 1, the law is well settled that a show cause notice under the provisions of Section 28 of the Act for payment of customs duties not levied or short-levied or erroneously refunded can be issued only subsequent to the clearance of the goods under Section 47 of the Act vide Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)]. Therefore, as rightly held by the Tribunal, if the contention of the appellant's counsel that when the goods were already cleared, no demand notice can be issued under Section 28 of the Act is accepted, we will be rendering the words "where any duty has been short-levied" as found in Section 28(1) of the Act as unworkable and redundant, inasmuch as the jurisdiction of the authorities to issue notice under Section 28 of the Act with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the emails which were taken without complying with provisions of Section 138C of the Act. Print out as document is admissible only if accompanied by certificate in terms of Section 138C of the Act obtained at time of taking printouts. Any documentary evidence by way of electronic record under the Act can be proved only in accordance with procedure prescribed under Section 138C of the Act which postulates admissibility of electronic record. The purpose of Section 138C of the Act is to sanctify evidence in electronic form, generated by a computer. The very admissibility of documents i.e. micro films, facsimile copies of documents and computer print outs as documents and as evidence depends on the satisfaction of four conditions prescribed under Section 138C (2) of the Act. There is nothing in the whole impugned order that DRI complied with Section 138C of the Act while placing reliance upon documents/ conversation printed out from the computer or hard disks resumed during investigation. In the absence of compliance of Section 138C of the Act documents/conversation printed out from computers are not admissible as evidence against the Appellant and any proceedings on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier Force India Ltd. [2008 (231) ELT 224 (Tri . -Chennai)] * Shri Ulacanavari Ammali Steels [ 2008 (231) ELT 434 (Tri.-Chennai]. * Sri Ulaganayagi Amman Steels [2009 (241) ELT 537 (Tri.-Chennai]." 7.4 For the ease o f reference Section 138 C and 139 of the Customs Act, 1962 and Section 65 B of the Indian Evidence Act are reproduced below: Section 65 B of Indian Evidence Act,- 65B. Admissibility of electronic records: (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (a) the computer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the contents; and (d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny place outside India in the course of investigation of any offence alleged to have been committed by any person under this Act, and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the court shall - (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.] Explanation. - For the purposes of this section, "document" includes inventories, photographs and lists certified by a Magistrate under subsection (1C) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [2020 SCCOnLine SC 571] 26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V., this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the Court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. 27. The term "electronic record" is defined in Section 2(1) (t) of the Information Technology Act, 2000 as follows: "2.(1)(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;" 28. The expression "data" is defined in Section 2(1)(o) of the Information Technology Act as follows: "2.(1)(o) "data" means a representation of information, knowledge, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heela Stainless Pvt. Ltd (in short M/s SSPL) having their office at Hisar and engaged in their trading of Iron & Steel Products and also having central excise registration as registered dealer. They are also having their sales office located at Motia Khan, Nabi Karim, New Delhi. The offices of the M/s P.S and M/s SSPL located in Delhi were not registered with the central excise department. The head office of M/s P.S and M/s SSPL is located in Hisar and the records of the both were maintained M/s P.S's office at Hisar. On 11.04.2013, a search was conducted at the premises to the M/s P.S and M/s SSPL. The factory of M/s P.S was found working. No variation in stock of inputs as well as finished goods were found in records of the stock maintained in the statutory records and no incriminating documents were recovered during the search of the factory premises of the appellant. Shri Deepak Gupta, Director of M/s SSPL was present in the office and two pen drives were recovered from possession of one Ms. Priyanka Jain, Office Executive. On the basis of two pen drives recovered from the possession of Ms. Jain, the print outs were taken and it was summarized that M/s P.S is engaged in clandes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts in the present case. 7.8 In the case of Copier Force India Ltd [2008 (231) ELT 224 (T-Chennai), following has been held:- "9.1 As regards the certificate to be given in terms of Sub-section 2(d) of Sec. 36B, it is admitted that Shri Krishnakumar, Manager (Accounts) CFI and his Assistants Ms. Radha, and Ms. Rathi entered the data on a daily basis. This has been admitted by Shri S. Krishnakumar, in his statement dated 29-1-03. This will meet the requirement of certification in terms of Sub-section 2(d) Section 36B of the Act. They cannot later say that no enquiry was made with the person stipulated u/s 36B(2)(d). Revenue has argued that once the printout is taken in presence of responsible persons who dealt with the data entry in the CPU and retrieval, printouts of such data do not need to comply with the safeguards enlisted u/s 36B(2) of the Act. While this is a reasonable stand, we find that the data retrieved are proved by the bank statements and oral evidence of employees of CFI. Thus the computer printouts are not solely relied on as evidence and the non-fulfilment of conditions under 36B(2) alleged does not affect the printouts being used in proceedings. Relevant e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962 is substantially complied with. In case of D Bhurmal, *1983 (13) ELT 1546 (SC)+, Hon'ble Supreme Court has clearly laid down that the cases of fiscal fraud need not be subject to the rigors of strict evidence as per the Evidence Act, but can be said to be established if they are established within the pre-ponderence of probability of their being true. The observations of the Hon'ble Apex Court are reproduced below: "43. If we may so with great respect, it is proper to read into the above observations more than what the context and the peculiar facts of that case demanded. While it is true that in criminal trials to which the Evidence Act, in terms, applies, this section is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is that it may, proportionately with the gravity or the relative triviality of the issues at stake, in some special type of case, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved." The same view was followed by this Court P.C. Thomas v. P.M. Ismail and Others - (2009) 10 SCC 239, wherein it was held as follows : "42. As regards the decision of this Court in Razik Ram and other decisions on the issue, relied upon on behalf of the appellant, there is no quarrel with the legal position that the charge of corrupt practice is to be equated with criminal charge and the proof required in support thereof w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two- Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The Tribunal has noted the Technical details supplied by the Respondents and the letter of the Respondents dated 30th November, 1993 giving details of how these parts are used in the Chilling Plant. The Tribunal has still strangely held that this by itself is not sufficient to show that they are specifically designed for the purpose of assembling the Chilling Plant. We are unable to understand this reasoning. Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use there is no need for the Department to prove the same. It is a basic and settled law that what is admitted need not be proved." 8.3 The appellants have committed a fraud by routing the goods of Chinese origin through the port of Malaysia and obtaining a Country of Origin Certificate to claim the benefit of exemption notification issued under Preferential Trade Agreement. The evidences to establish the fraud to claim the inadmissible exemption are in form of- * invoices culled from the e-mail accounts of the Proprietor of the Appellant and Manger (Import/Export), both of whom have certified it and ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 28 of the Custom Act, 1962 has been extended to all the officers of customs notified under the said act. Hence the ground questioning the jurisdiction of DRI officers to issue this show cause notice cannot be sustained in view of the decision of the Hon'ble Gujarat High Court in case of Swati Menthol and Allied Chemicals Ltd. [2014 (304) E.L.T. 21 (Guj.)] holding as follows; "32.In that view of the matter by the settled position, we cannot hold that respondent No. 1 lacked the jurisdiction to issue a show cause notice. Had this notification not been issued, the question perhaps would be whether under sub-section (17) of Section 28 despite the decision of the Supreme Court in the case of Sayed Ali (supra), the respondent No. 1 could be considered as a proper officer for the purpose of Section 28. However, it is not necessary for us to examine such question since in our opinion notification dated 6-7-2011 is specific and assigns functions under Sections 17 and 28 to such officer. He is, therefore, the proper officer in terms of Section 2(34) of the Act. Subsequent notification dated 2-5-2012 would not change this position. This is only a further notification assigning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act the plant was never used for such contracts as canvassed by the appellant during the importation of goods and claiming exemption. The appellant has not adduced single evidence that they have followed the conditions of the notification. They declared that they had contracts awarded by the State of U.P. wherein the imported plant would be used. However they never used the said imported equipments in State of U.P. for construction of road. Instead they used the plant as a subcontractor in State of Rajasthan and Tamil Nadu, but even in these cases also they were not named as sub-contractor in the contract awarded for construction of road. As per the conditions of the exemption notification, an importer can claim the benefit of exemption provided they are named as sub-contractor for construction of road. Even this condition was not satisfied. It clearly shows that the appellant never complied with the conditions of the exemption notification and has knowingly violated the conditions. We also find that since the conditions of the notification were not complied with and from the facts of the case it is very clear that the same were never intended to be complied with, we hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
