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TMI Blog2022 (4) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... d) Pending the admission and final disposal of the petition, this Hon'ble Court be pleased to stay the execution and implementation of the notice at Annexure A to the petition; e) Pending the admission and final disposal of the petition, this Hon'ble Court be pleased to stay the execution and implementation of the order in original at Annexure B to this petition; f) This Hon'ble Court be pleased to grant an ad-interim relief in terms of para d) and para e); g) To pass such other and further orders as are necessary in the interest of justice; 2. We need not adjudicate this writ application on merits as we take notice of the fact that the very same show cause notice and the Order in Original impugned in the present writ application was a subject matter of challenge before this High Court at the instance of one M/s. S J S International in the Special Civil Application No.20484 of 2019. The Special Civil Application No.20484 of 2019 came to be disposed of by a Coordinate Bench of this Court vide order dated 09.12.2021. This order reads thus: "1. The petitioners in the present petition have questioned the Show Cause Notice ('the SCN' hereinafter) issued on 09.02.2018 by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Appellate Tribunal ('the CESTAT' hereinafter) by the petitioners wherein the condition was relaxed and upon furnishing 100% value of the goods, the goods were released. They are finally assessed by the competent authority and duty drawback withheld was granted to the petitioners by order of this Court dated 13.08.2015. 2.5. It is averred by the petitioners that on two grounds of mis-declaration of weight and classification, the goods have been seized. The SCN has been issued on three grounds: mis-declaration (I) of weight, (ii) of classification, and (iii) of value of goods sought to be exported for the past consignments from 01.01.2011 to 30.06.2015 for which the duty drawback was availed. 2.6. It is alleged that the respondent no.2 adjudicated the SCN and passed the impugned order in breach of principle of natural justice therefore, the present petition is preferred with the following prayers: - "(a) This Honourable Court be pleased to allow this petition; (b) This Honourable Court be pleased to issue a writ of mandamus or certiorari or in the nature of mandamus or certiorari or any other appropriate writ, order or direction, quashing and setting aside the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wback Rules' hereinafter) empowers the department to recover the erroneous payment of drawback without any time limit and it can initiate the recovery proceedings under Section 142 of the Act. 3.3. In the era of self-assessment, the department relied on the information provided by the exporter/customs broker in the shipping bills, invoices, packing list, etc. The matter under consideration is an outcome of the investigation which has been thoroughly carried out by the investigating agency and the goods were found to be misdeclared in terms of quantity, value and they were mis-classified by the adjudicating authority. It is reflective that the petitioners misunderstood the concept of self-assessment and therefore, they were reassessed by the adjudicating authority. 3.4. It is further contended that since the goods were misclassified and misdeclared in terms of quantity and value, they were confiscated in terms of 113(i) and 113(ii) of the Act read with Section 11 of the Foreign Trade (Development & Regulation) Act, 1962. Though the goods have been already exported, they were liable for confiscation. It is a settled position of law, according to the respondents, that Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the classification, no interference is desired. 4. Affidavit-in-rejoinder has been filed by the petitioner No.2 denying all the contentions. 5. This Court has heard extensively the learned advocates on both the sides and also have examined the pleadings and supporting materials carefully. The petitioners have approached this Court on the ground that the respondent has no jurisdiction to initiate the actions and has exceeded its jurisdiction vested in him by issuing the SCN beyond a certain period & also in respect of exported goods. The issue of classification of goods has been attempted to be opened by the respondent, assessed by the proper officer under the law. The petitioners are engaged in the business of export of nut, bolts, washer, hand, etc. falling under Chapter Heading 7318, 8205, 3926, 3923 of the Customs Tariff Act, 1975. According to the petitioners, the legal position is that the goods are to be classified as per the description and not as per use of the material and thus, if the nut is to be classified as the end use of the nut, the classification would be done accordingly. It is further the case of the petitioners that this is the view the Courts have taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigate and adjudicate the matter. 7.1 So far as the Rule 16 of the Drawback Rules is concerned, it provides the recovery of payment of drawback and it also permits the initiation of recovery proceedings under Section 142 of the Act. 7.2 Here, the challenge essentially is of having initiated the proceedings in relation to the goods, which have already been exported and there were serious questions raised of misdeclaration in terms of quality, value and wrong classification. This confiscation has been made in terms of Sections 113 (1) and Section 113(2) of the Act read with Section 11 of the Foreign Trade (Development and Regulation) Act, 1962. 7.3 Under the shipping bills No.6982039 dated 01.01.2015 and 6982047 dated 01.01.2015, some of the goods were allegedly misdeclared in terms of quantity/ weight and the classification of the goods. The search of the premise of M/s.SJS International, Jalandhar under the Panchnama dated 20.10.2015 had been conducted and the electronic devices and documents were retrieved from the office of the petitioner. The DRI, Ludhiana examined the same and also recorded the statement of Mr.S.K.Chaudhary. The Order-in- Original indicated that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be issued to each of the petitioners proposing to recover from them the differential amount of drawback erroneously paid to them under section 142 of the Customs Act read with Rule 16 of the Drawback Rules on the ground that the drawback should have been paid at the rate of 17% by taking into account the maximum limit of Rs. 62 per kg. The adjudicating authority had held that it was inherent in the scheme that the drawback could not exceed the maximum of Rs. 62 per kg fixed for a particular serial number. 9. However, on limitation, it was held that there is no provision prescribing any specific time for issuance of SCN for recovery of excess drawback paid by the Department under Rule 16 of the Drawback Rules. 9.1 This was carried in appeal before the Commissioner (Appeals), who by a common order dated 29.6.2000, allowed the appeals and thereafter, the revenue approached the revisional authority in the Government of India, which also allowed the same. On the question of time limit for recovery of drawback, the revisional authority also held that the Drawback Rules are a self contained set of Rules made under section 75 of the Act and there is no time limit for issuance of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k paid to the petitioner beyond the ceiling limit provided thereunder. It is only in February 2000, after a period of more than three years that by issuance of show cause notices, differential amount of drawback was sought to be recovered from the petitioners. The revisional authority in the earlier order dated 28th June, 2002 has held that the Drawback Rules do not provide for any time limit and as such there is no time limit for issue of demand notice for recovery of drawback paid erroneously or in excess under rule 16 of the Rules. 18.Rule 16 of the Drawback Rules provides that where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs, repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails to repay the amount it shall be recovered in the manner laid down in sub section (1) of section 142 of the Customs Act, 1962. Thus, apparently rule 16 of the Rules does not provide for any time limit for making recovery of excess drawback paid erroneously. The question, therefore, is when rule 16 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reation 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. 21. In Torrent Laboratories Pvt. Ltd v. Union of India (supra), a Division Bench of this Court in the context of rule 57-I of the Central Excise Rules, 1944 held that in absence of any provision with regard to specific period of limitation, reasonable period of limitation has to be read into the rule. 22. Thus, it is a settled legal proposition that where a statutory provision does not prescribe any period of limitation for exercise of power thereunder, a reasonable period has to be read therein. As to what is a reasonable period would depend upon the facts of each case. 23. Examining the facts of the present cases in the light of the aforesaid legal position, in all these cases, drawback had been paid to the petitioners between December 1995 and August 1996. Thereafter, despite a clarification h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f limitation could not be invoked was misconceived. The decision cannot be said to be laying down any absolute proposition of law to the effect that since rule 16 of the Drawback Rules does not provide for any limitation for recovery of amount of drawback erroneously paid, such powers can be exercised at any point of time, even beyond a reasonable period. 25. As regards the submission advanced by the learned counsel for the respondent that since in the review application, the petitioners had not raised the contention as regards limitation, the petitioners are now prohibited from raising the same in these petitions, it may be noted that in the earlier order dated 28th June 2002, passed by the Government of India, the issue on merits, namely, applicability or otherwise of the maximum ceiling to the goods falling under condition (c) of the Note under SS No.5404(1)(i) of the Schedule had not been decided inasmuch as in para 12 of the said order, the revisional authority observed that the issues were already decided by the Government in the interim order. The sole issue that was decided by the revisional authority in the said order was on the question of time limit for recovery of dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of E I DUPONT INDIA PRIVATE LIMITED & 1 vs UNION OF INDIA & 3. had noticed the case of Commissioner of Central Excise and Customs vs. NBM Industries, reported in 2013(29) STR (208) Gujarat wherein it had been held that on inputs used in manufacturing of goods cleared by DTA units to 100% Export Oriented Unit (EOU), refund of CENVAT credit is available and the same cannot be denied on the ground that the case was of deemed export. It was insisted that the refund would be granted only in case of physical export. This Court disapproved non following of a binding decision and despite the direction of this Court, the respondent had rejected the refund claims of the claimant on the ground that the decision of NBM Industries (supra) is the case of another assessee and not in the case of claimant and each one must fight its own battle and must succeed or fail in such proceedings. It also had relied on the decision of the Madras High Court reported in 2007(211) ELT 23 (Madras) which was against the assessee. 9.6 This Court taking note of various decisions had directed that the action of the rejection of refund claim cannot be sustained and deserve to be quashed and set aside. While pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proceedings but also speaks of disregard to the direction of this Court rendered in the earlier petition of this very petitioner. Resultantly, petition stands allowed. Both the show cause notices dated 21.8.2012 and 22.1.2013 are quashed and struck down." It appears that still the message has not reached the concerned authorities in following the binding decisions of the higher appellate authorities and/or courts solely on the ground that the same is in the case of another assessee. Such a conduct is also required to be viewed from another angle. This would not only amount to disregarding the direction of the court rendered in earlier petitions but would also lead to multiplicity of proceedings. When the courts are overburdened and are accused of arrears, it is the duty of the concerned authorities to avoid multiplicity of proceedings and lessen the burden of the courts. Being a part of the justice delivery system. All efforts should be made by the authorities/quasi judicial authorities and judicial authorities to see that there is no multiplicity of proceedings and to pass the orders considering the binding decisions. It would also avoid unnecessary harassment to the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional release by approaching the CESTAT, which vide order dated 01.05.2015 released the seized goods on furnishing the bond of 100% value and accordingly, goods were provisionally released for the exports by the custom authority. 12. This Court notices the detailed Order-in-Original adjudicating the SCN against which there is already a channel of appeal provided and thereafter, if the party is still aggrieved, the revisional authority can also be approached by the litigating party. However, here previously SCN of dated 12.01.2016 in relation to the seized goods was already issued and yet, another SCN is issued, the revenue has not challenged what has been held favoring the petitioner and the petitioner has challenged it on the ground of breach of principles of natural justice as well as on substantive issues. 13. The petitioner has approached this Court as the actions have been taken of issuance of the SCN in relation to the search made on 10.01.2015, the SCN has been issued on 09.02.2018. It is thus clear that for the export which had been made in the years 2011 to 2015 and for the shipping Bills of 01.01.2015 for which the duty drawback had been given to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g bills as the show cause notice essentially cannot be issued beyond the period of three years of payment of the duty drawback, and that being a settled legal position, if not regarded, this Court needs to interfere. Again, the proper officer who assesses the shipping bills will be in a position to reopen the same provided that there is such a stage of reopening the shipping bill filed once are self assessed, that would attain finality upon the proper officer clearing the same. Had there been any discrepancy, the proper officer would not consider the self assessment final and would obviously assess the shipping bill before finalizing. 17. In the instant case, the shipping bills had been finally assessed and the assessment had attained finality. The aggrieved party having any issue on the classification would need to approach the appellate authority instead of reopening the assessment by issuing the show cause notice. The appeal appears to have become time barred as averred by the petitioners, the show cause notice is on account of the misclassification. 18. However, the Court needs to regard that the core issue raised in SCN is of classification which is concluded and no chal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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