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TMI Blog2023 (7) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. As would be evident from a reading of provision of section 28, sub-section (4) provides a window of five years from the relevant date within which proceedings under the said provision may be initiated. The proceedings so initiated are liable to be brought to a close in accordance with the statutory timelines which stand set out in subsection (9). In terms of sub-section (9) and since the notice had been issued with reference to Section 28(4), the proceedings were liable to be brought to a close within one year from the date of the notice and in the facts of the present case, the same being computed from 05 August 2021. Of equal significance is the amendment which came to be introduced in Section 28(9)(b) in terms of Finance Act, 2018 and pursuant to which the words where it is possible to do so came to be deleted. The statutory amendment as introduced in terms of the aforenoted Act 13 of 2018 thus clearly lends credence to the submission of learned counsel for the petitioner that the period of one year as prescribed in clause (b) was legislatively conferred a mandatory flavour - The Court then takes note of Section 28(9A)(c) and which is the principal provision which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y it. Upon the issuance of the SCN, the petitioner discloses that the Assistant Commissioner of Customs apprised them that the competent authority had accorded due approval to keep adjudication proceedings pertaining to the said notice in abeyance and till further orders in light of the provisions made in Section 28(9A)(c) of the Act. According to the petitioner, the said information was provided to them on 21 March 2022. The SCN proceedings are thereafter stated to have been fixed for consideration on 09 December 2022. The petitioner appeared before the second respondent and filed their submissions on that date. The petitioner avers that their representative was again verbally informed by the second respondent that pending the Central Board of Indirect Taxes and Customs [Board] deliberating upon the judgment of the Supreme Court in Canon India Private Limited v. Commissioner of Customs 2021 SCC OnLine SC 200, an in-principle decision had been taken to keep all such SCNs' in abeyance. 3. On 12 December 2022, the petitioner drew the attention of the second respondent to the fact that the impugned SCN had in fact been issued by a Deputy Commissioner of Customs and thus clearly not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , attention is drawn to the specific reference for seeking Board's direction with respect to SCN dated 19.03.2019 against Sh. Anil Aggarwal and 11 others where the adjudication of the SCN would get barred by the limitation of time on 18th March, 2021 under sub-section (9) of section 28 of the Customs Act, 1962, on account of the inability to proceed further due to the said judgement of the Hon'ble Supreme Court. 3. The matter has been examined. The implications of the said judgement are under active examination in the Board. Therefore, the Board has decided that for the present and until further directions, the said SCN may be kept pending. 4. Further, all the fresh SCNs under Section 28 of the Customs Act, 1962 in respect of cases presently being investigated by DRI are required to be issued by jurisdictional Commissionerates from where imports have taken place. 5. Difficulties, if any, may please be brought to the notice of Board. Hindi version follows. Yours faithfully, (Ananth Rathakrishnan) Deputy Secretary (Customs)" "F. No. 450/72/2021-Cus-IV Government of India Ministry of Finance Department of Revenue (Central Board of Indirect Taxes and Customs) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ["the Board"] dated 17 March 2021 and 16 April 2021 to contend that in light of those directions, the period of limitation within which the SCN was liable to be finalised would be governed by Section 28(9A)(c). 4. It becomes pertinent to note since the SCN had been issued under Section 28(4), it would be the period of one year as prescribed in Section 28(9)(b) which would have applied. Read along with the Proviso appended thereto, the respondents would have had a period of one additional year subject to compliances being made in terms of the said statutory provision. 5. It is the case of the petitioner that not only has the period of one year not been extended as contemplated in law, even the directives issued by the Board would not apply for the following reasons. It was firstly contended that notwithstanding the flux in the legal position which prevailed in the perception of the respondents and stemming from the judgment rendered by the Supreme Court in Canon India Private Limited v. Commissioner of Customs, [2021 SCC OnLine SC 200], the Customs authorities always stood empowered to initiate action under Section 28(4). Learned counsel submits that Canon India essentially ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Canon India and which had held that an officer attached to the DRI would not be liable to be understood to be a "proper officer" for the purposes of initiation of proceedings under Section 28. The directive of 17 March 2021 in paragraph 3 then proceeds to allude to "said" SCN which had been issued against Sh. Anil Aggarwal and 11 others. Bearing in mind the fact that the said SCN was about to become barred by limitation on 18 March 2021, the Board directed that the said SCN be kept pending. It however further clarified in paragraph 4 of that directive itself that in all other cases in which an investigation by the DRI is continuing, fresh SCN's may be got issued by the jurisdictional Commissionerates. 8. In terms of the directive of 16 April 2021, the Board apprised the concerned authorities that the entire gamut of issues which arose out of the judgment in Canon India had been duly examined and it had been decided that in all cases where the DRI may have issued the original SCNs', as a matter of abundant caution, SCNs' may be issued by the concerned Deputy Commissioners/Assistant Commissioners of the concerned port of import. It was further observed that further action in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 sub-section 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 28-AA 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 issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest 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 sub-section (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. (7-A) Save as otherwise provided in clause (a) of sub-section (1) or in subsection (4), the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed, and the provisions of this section shall apply to such supplementary notice as if it was issued under the said sub-section (1) or sub-section (4). (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) of Section 27 is modified in any appeal and the amount of refund so determined is less than the amount refunded under said sub-section, the excess amount so refunded shall be recovered along with interest thereon at the rate fixed by the Central Government under Section 28-AA, from the date of refund up to the date of recovery, as a sum due to the Government. (10-B) A notice issued under sub-section (4) shall be deemed to have been issued under sub-section (1), if such notice demanding duty is held not sustainable in any proceeding under this Act, including at any stage of appeal, for the reason that the charges of collusion or any wilful mis-statement or suppression of facts to evade duty has not been established against the person to whom such notice was issued and the amount of duty and the interest thereon shall be computed accordingly. (11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as Officers of Customs under sub-section (1) of Section 4 before the 6th day of July, 2011, shall be deemed to have and always had the power of assessment under Section 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governed by the provisions of Section 28 as it stood immediately before such date." 10. As would be evident from a reading of the aforesaid provision, sub-section (4) provides a window of five years from the relevant date within which proceedings under the said provision may be initiated. The proceedings so initiated are liable to be brought to a close in accordance with the statutory timelines which stand set out in subsection (9). In terms of sub-section (9) and since the notice had been issued with reference to Section 28(4), the proceedings were liable to be brought to a close within one year from the date of the notice and in the facts of the present case, the same being computed from 05 August 2021. 11. Of equal significance is the amendment which came to be introduced in Section 28(9)(b) in terms of Finance Act, 2018 [Act 13 of 2018] and pursuant to which the words "where it is possible to do so" came to be deleted. The statutory amendment as introduced in terms of the aforenoted Act 13 of 2018 thus clearly lends credence to the submission of learned counsel for the petitioner that the period of one year as prescribed in clause (b) was legislatively conferred a mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X
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