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TMI Blog2022 (10) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the statutory time-frame. There has been a violation of not only the safeguard provided in the proviso appended to Section 28(1)(a) of the 1962 Act requiring holding pre-notice consultation with the person chargeable with tax and interest but also infraction of the right of such person, to be accorded, in the very least, 15 days under sub-regulation (2) of Regulation 3 of the 2018 Regulations to respond to any such initiative of holding such consultation - the importance of pre-show cause notice consultation is exemplified in the provisions of sub-regulation (4) of Regulation 3. As noticed in the order dated 29.08.2022, a plain perusal of the said provision would show, that it is quite possible, that after consultation, the concerned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, says that the SCN could only have been issued after pre-show cause notice consultation had occurred, as contemplated in the proviso appended to Section 28(1) (a) of the Customs Act, 1962 [in short, "1962 Act"]. 3. It is Mr Sunil's contention, that the respondents/revenue has taken a position, that a pre-consultation notice dated 14.12.2021 was served on the petitioner. 3.1 Mr Sunil says that it is the position of the petitioner, that although it did not receive the aforesaid notice dated 14.12.2021, assuming that it did receive the said notice, that by itself will not lend legal viability to the SCN dated 22.12.2021. 4. The reason Mr Sunil makes this argument is based on the provisions of Regulations 3(2) and 3(4) of the Pre-Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice with reference to the grounds communicated under sub-regulation (1), he shall, by a simple letter, intimate the same to the person concerned." 5. A perusal of the proviso does indicate that it was obligatory on the part of the respondents/revenue to serve a notice on the petitioner, with regard to the pre-consultation. 6. Although there is some dispute, as to whether pre-consultation notice letter dated 14.12.2021 (hereinafter referred to as "the notice") was served on the petitioner, Regulation 3(2) does mandate that 15 days, from the date of communication, had to be accorded for enabling the recipient of the notice to make submissions in writing. 6.1 Furthermore, the recipient of the notice, under the very same regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit was not filed, as directed by this Court via order dated 29.08.2022. 4. Resultantly, when the matter was listed on 19.09.2022, we had put to Mr Kumar, as to what were his instructions in the matter. 4.1 Mr Kumar had informed us that he had no instructions in the matter, and that the matter should be stood over till today, for him to return with instructions. 5. Today, Mr Kumar says that the counter-affidavit is ready, which will be filed in the course of day. 6. Admittedly, the counter-affidavit has not been filed, although e-filing system is available to all litigants, which includes the respondents as well. 6.1 However, a hard copy of the counter-affidavit, which Mr Kumar intends to lodge, has been furnished to us. 7. A perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having heard the counsel for the parties, we are of the view that the order-in-original dated 25.05.2022 cannot be sustained. 14. We had briefly indicated in the order dated 29.08.2022 as to what was the legal flaw in the order-in-original passed in the matter. 14.1 The first flaw, as indicated in our order dated 29.08.2022, was the non-adherence to the statutory provision extracted in the said order i.e., Section 28(1)(a) read with the proviso appended to the said provision of the 1962 Act. 14.2 A careful perusal of the said provision would show, that it is obligatory on the part of the concerned officer, to ensure that prior to issuance of the show-cause notice ["SCN"], a pre-notice consultation is held with the person chargeable wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espond to any such initiative of holding such consultation 18.1 The importance of pre-show cause notice consultation is exemplified in the provisions of sub-regulation (4) of Regulation 3. As noticed in the order dated 29.08.2022, a plain perusal of the said provision would show, that it is quite possible, that after consultation, the concerned authority may decide to drop the proceedings if it is satisfied with explanation it receives during such process. 19. A perusal of the record shows, that inter alia, the dispute centers around classification i.e., the heading, under which the subject goods are to be classified. 20. The differential duty demanded, as noticed above, is founded on this dispute obtaining between the parties. This is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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