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TMI Blog2025 (1) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Revenue Intelligence, Ahmedabad Zonal Unit (hereinafter "DRI") and to declare the proceedings pending under the SCN before Respondent No. 2 - Principal Commissioner of Customs, ICD Patparganj, New Delhi, to be abated in terms of Section 28(9) of the Customs Act, 1962 (hereinafter, "Act"). 3. The case of the Petitioner Company is that it was engaged in the business of importing and trading of various goods including parts of water purifier such as RO Membrane, Booster Pump, Carbon Filter, Sediment Filter etc. (hereinafter "subject goods"). According to the Petitioner Company, the subject goods were being imported through various ports including CFS Mulund Maharashtra, JNCH Nhava Sheva Maharashtra, Kandla Port Gujarat, ICD Ballabhgarh Faridabad, Haryana, ICD Patparganj and ICD Tughlakabad, New Delhi. The DRI suspected mis-declaration and undervaluation in the import of the subject goods that were being imported allegedly by one Mr. Ashok Singhla, in the name of various name-sake "Import Export Code Holders" (hereinafter "IEC holder") such as the Petitioner Company. Accordingly, on 16th April, 2012, the DRI conducted certain searches at the premises of the Petitioner C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods when sold for export to India for delivery at the time and place of importation, or as the case may be, for export from India for at the time and place of exportation, where the buyer and seller of the are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf'. Further, Rule 3 of the Custom Valuation Rules, 2007 provides that subject to Rule 12, the value of imported goods shall be the transaction value adjusted in accordance with provisions of Rule 10. It appears that in the instant case Shri Ashok Singhla has explained all the material evidences available on record in the form of proforma invoices, e-mail communication etc. produced two Annexures showing actual price of respective consignments as shown in said Annexures and also confessed average actual the basis of available evidence on record in his statement. Therefore, it appears that the value confessed by Shri Ashok Singhla can be treated as transaction Therefore, it appears that after the rejection of the declared value, the assessable value for the types of water purifier parts needs to be re-determined on the basis of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hla, de-facto owner of imported goods. It also appears that M/s. PAMCPL and Shri Ashok Singhla, de-facto owner of imported goods, have adopted the modus operandi of deliberate and willful suppression of actual value in contravention of various provisions of Customs Act and Rules made thereunder, with an intent to evade payment of Customs duty of Rs. 8,81,92,681/- (as detailed in the Annexures-A2,B2,C2.D2.E2 & F2 to the SCN). Hence, Section 28 (4) [erstwhile proviso to Section 28 (1)] of the Customs Act, 1962, for invoking the extended period for demand of duty is applicable in the instant case. Therefore, the differential Customs duty amounting to Rs. 8,81,92,681/- (as detailed in the Annexures-AZ,BZ,C2,D2,E2 & F2 to the SCN) is liable to be recovered jointly and severally from M/s. PAMCPL and 'Shri Ashok Singhla, de-facto owner of imported goods, under Section 28 (4) [erstwhile proviso to Section 28 (1)) of the Customs Act, 1962, along with applicable interest under Section 28 AA [erstwhile Section AB] of the Customs Act 1962. 19.5 Further, the said acts of willful mis-statement, collusion and suppression of facts by M/s. PAMCPL and Shri Ashok Singhla, de-facto owner of impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms (Mulund CFS 85 General), (ii) Additional/Joint Commissioner of Customs (Import), JNCH, Nava Sheva, (iii) Additional/Joint Commissioner of Customs, Kandla, (iv) Commissioner of Central Excise, Delhi - IV (Faridabad), (v) Additional/Joint Commissioner of Customs, Inland Container Depot, Patparganj and (vi) Commissioner of Customs, Inland Container Depot, Tughlakabad. On the basis of the allegations stated in the impugned SCN, the DRI raised various demands against the Petitioner Company and Mr. Ashok Singhla. In addition, interest and penalty was also sought to be imposed on the Petitioner Company and Mr. Ashok Singhla. 6. The impugned SCN, however, was not adjudicated for a substantial period of time by the concerned assessing authorities, despite the SCN being made answerable to six separate authorities. In view of the fact that there were multiple adjudicating authorities a common adjudicating authority i.e., Commissioner of Central Excise, Delhi was appointed on 5th June, 2014 by the Central Board of Excise and Customs (hereinafter "CBEC") to adjudicate the impugned SCN. Thereafter, on 7th June, 2016, the CBEC appointed the Commissioner of Customs, ICD, Patpar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty or interest. The period specified in the said provision is six months and a maximum period of one year. Section 28(9) of the Act reads as under: Section 28(9) of the Customs Act, as in force prior to 29th March 2018 read as under: "28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxx xxxx xxxx xxxx (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, [where it is possible to do so], in respect of case falling under clause (a) of sub-section (1); (b) within one year from the date of notice, [where it is possible to do so] in respect of cases falling under sub-section (4):" Section 28(9) and 9(A) of the Customs Act, 1962 pursuant to amendment reads as under: "28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxx xxx xxxx (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, [xxx], in respect of case falling under clause (a) of sub-section (1); (b) within one year from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the amendment and post the omission, the window which existed for delay in adjudication after the issuance of show cause notice does not exist. 12. Ld. Counsel for the Petitioner has also relied upon the following judgments: i. State of Punjab & Ors. v. Shreyans Industries Ltd., (2016) SCC769 ii. Shri Ram Agro Chemicals Pvt. Ltd. v. Union of India & Ors., 2019 SCC OnLine P&H 4918 Analysis and Findings 13. The Court has considered the matter. The issue raised in the petition is no longer res-integra. Section 28(9) of the Act, unamended and amended, have been considered in detail by the Coordinate Benches of this Court in Swatch Group India Pvt. Ltd. (supra) as also M/s Vos Technologies India Pvt. Ltd. v. The Principle Additional Director General & Anr., 2024 SCC OnLine Del 8756. All the issues which have been raised by the Respondents now stand adjudicated. The relevant observations in the said judgments are set out below: Swatch Group India Pvt. Ltd. v. Union of India & Ors. 2023 SCC OnLine Del 4938 "43. We have perused the documents and letters produced by the Department as referred above. It is seen that for a period of almost three years, various letters were exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific period for the authority to discharge its functions. The indifference of the concerned officer to complete the adjudication within the time period as mandated, cannot be condoned to the detriment of the assessee. Such indifference is not only detrimental to the interest of the taxpayer but also to the exchequer. 47. In the absence of any ground that it was not possible for the officer to determine the amount of duty within the prescribed period, the impugned SCN has lapsed and cannot be adjudicated." M/s Vos Technologies India Pvt. Ltd. v. The Principal Additional Director General & Anr., 2024 SCC OnLine Del 8756 "85. The position which thus emerges from the aforesaid discussion and a review of the legal precedents is that the respondents are bound and obliged in law to endeavour to conclude adjudication with due expedition. Matters which have the potential of casting financial liabilities or penal consequences cannot be kept pending for years and decades together. A statute enabling an authority to conclude proceedings within a stipulated period of time "where it is possible to do so" cannot be countenanced as a license to keep matters unresolved for years. The flexibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court. Therefore, the respondents were under constraint to transfer present case to Call Book on 16.12.2016. e. That the present case was subsequently taken out from the Call Book on 03.01.2017 on Instructions issued by the CBEC vide F. No. 276/104/2016- CX.8A(Pt.) dated 03.01.2017 for adjudication and accordingly, the Petitioner was issued letter dated 04.05.2017 to file its reply and was also afforded an opportunity of personal hearing. The said Instruction Order dated 03.01.2017 and letter dated 04.05.2017 are annexed herewith as Annexure - R/ 5 and Annexure - R/ 6 respectively. [...] j. That, in the meantime, M / s R"'Anil Kumar had filed a Writ Petition vide no. 5016/2017 before this Hon'ble Court in the mater of M / s Mangli Impex Ltd., wherein this Hon'ble Court had passed an order dated 30.05.2017 and directed the Department to transfer the case to Call Book and keep the adjudication proceedings in abeyance. That the copy of said order dated 30.05.2017 is annexed herewith as Annexure - R/10. Thus, the Department/ Respondents were constrained to take a decision to transfer all such cases including the impugned SCN to Call Book which were affe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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