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TMI Blog2025 (1) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... aring No. DRI F.No. 23/118/2005-DZU/VE (hereinafter "SCN") dated 23rd May, 2008, issued by the Respondent No. 2 - Additional Director General, Directorate of Revenue Intelligence, Delhi Zonal Unit (hereinafter "DRI"). 3. The impugned Order-in-Original is challenged, inter alia, on the ground that validity of the impugned SCN was under consideration before this Court in W.P.(C) 15436/2023 and the impugned Order-in-Original was passed while the said petition was pending, in violation of the principles of natural justice. The impugned SCN and the proceedings initiated thereunder have been challenged on the ground that the same are barred by limitation in terms of Section 28 of the Customs Act, 1962 (hereinafter, "Act"). 4. The Petitioners are engaged in the business of importing and trading of various types of papers and paper board including newsprint and lightweight coated paper (hereinafter "subject goods"). The DRI suspected mis-declaration and undervaluation in the import of subject goods by certain importers, who were alleged to be working with various 'Registrar of Newspapers in India' certificate holders (hereinafter "RNI holders"). As per the DRI one Mr. Prakash Garg allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terprises from M/s Belsun Corp., USA obtained during investigation as reflected in table under Para 50 above the unit price as declared in the import documents of consignments of goods imported in M/s Vijay Enterprises from M/s Belsun Corp. USA needs to be rejected under Section 14 of the Customs Act, 1962 read with Rule 4 and 10A of the Customs Valuation (Determination of Prices of the Imported Goods) Rules, 1988 and needs to be enhanced as shown in Table A-1. 53.3.3 From the evidences of actual transaction value as explained in paras herein above in relation to 14 consignments imported by M/s Vijay Enterprises from Belsun Corporation, where the value declared ranged between USD 180 to USD 250 PMT, it can be reasonably concluded that the rest of the eight consignments imported from M/s Belsun Corporation in the name of Vijay Enterprises have also been imported by undervaluing & mis-declaring the value to be USD 180 to USD 250 PMT. Thus their value needs to be re-determined under Rule 6 of the Valuation Rules. As the actual values of the consignments ranged from USD 350 to USD 600 PMT, hence as per Rule 6, the lowest value of USD 350 PMT of the similar goods needs to be taken as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etailed in Table A-14, which have been imported and cleared by them, fraudulently, should not be demanded from them under the Proviso to section 28 (1) of the Customs Act, 1962. (iv) Interest under Section 28 AB should not be demanded from them. (v) Penalty should not be imposed upon them under Section 112 (a) & (b) and/or 114 A of the Customs Act, 1962. (vi) The bank guarantee for Rs 616941/- executed by M/s Salwan International Paper Pvt. Ltd for provisional release of consignment imported under bill of entry no. 497335/10.4.06, 497048/7.4.06, 497049/7.4.06, 497336/10.4.06 and 497063 dated 7.4.06 should not be revoked and appropriated and adjusted towards the duty liability." 7. It is the case of the Petitioners that after issuance of the impugned SCN, the Petitioners had made several request vide letters dated 3rd February, 2010 and 5th February, 2010 with the concerned assessing officer to provide all the 'relied upon documents' (hereinafter "RUDs"). However, the Petitioners were not provided with all the RUDs. It is stated that between 15th January, 2010 and 17th February, 2012, the Petitioners did not receive any communication from the Department. Thereafter, the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose penalty of Rs. 7,00,000/- (Rs. Seven Lacs) under Section 112 (a) (ii) and Rs. 99,52,308/- (Rupees Ninety Nine Lakh Fifty Two Thousand Three Hundred and Eight) under Section 114A of the Customs Act, 1962 on M/s Vijay Enterprises; (v) I order to appropriate the amount of Rs. 98,63,154/- (Rs. 86,61,722/- + Rs. 12,01,432/-) already paid by noticee during Investigation as discussed at para 10 and order to adjust towards liability against duty, interest and penalty. I further order to appropriate of Bank Guarantees of Rs. 49,05,945/-(Rs. 48,05,730/- + Rs.1,00,215/-) submitted by M/s Vijay Enterprises for provisional release during investigation as discussed at para 10 and order to adjust towards liability against duty, interest and penalty. That I order recovery of balance amount of duty, interest and penalty on M/s Vijay Enterprises from M/s Vijay Enterprises (Noticee no 1/2) through its prop/ controller Sh Prakash Garg; (vi) I impose a penalty of Rs 5,00,000/- (Rs. Five Lacs) on Shri Utpal Gupta, CHA, under Section 112 (a) (ii) of the Act; (vii) I impose a penalty of Rs 3,00,000/- (Rs. Three Lacs) on Shri K.M.R.Nambiar, under Section 112 (b) (ii) of the Act; (viii) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (ii) of the Act; (x) I impose a penalty of Rs. 20,000/- (Rs Twenty thousand) on Shri Shyam R Sundar, under Section 112 (b) (ii) of the Act; (xi) I impose a penalty of Rs. 20,000/- (Rs Twenty thousand) on Shri Shri Gopal T Khetan. under Section 112 (b) (ii) of the Act." 10. The Petitioners have filed W.P.(C) 5809/2024 challenging the impugned Order-in-Original on the ground of violation of principles of natural justice by the concerned assessing officer. Submissions of Parties: 11. It is the case of the Customs Department that, during the relevant period for adjudication of the impugned SCN, the decision of the Coordinate Bench of this Court in Mangli Impex Ltd. v. Union of India & Ors. [2016:DHC:3435-DB] was rendered due to which the impugned SCN was put in the call book on 29th June, 2016 and again taken out from the call book on 3rd January, 2017. Thereafter, certain instructions were issued by the Central Board of Indirect Taxes & Customs (hereinafter "CBIC") which resulted in the impugned SCN again being put in the call book on 3rd November, 2017 and taken out from the call book on 3rd May, 2019. As per the Respondents after the judgment of the Supreme Court in M/s Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs 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 determine 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 direction or order to keep such matter pending; or (d) the Settlement Commission has admitted an application made by the person concerned, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty or interest under sub-section (8) and in such case, the time specified in subsection (9) shall apply not from the date of notice, but from the date when such reason ceases to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board to keep the show cause notices referred therein pending. It is significant to note that the instruction categorically mentions about a show cause notice dated 19.03.2019 and that in terms of the judgment passed by the Apex Court in Canon India Private Limited v. Commissioner of Customs (supra), the proceedings in the case have become invalid. It was mentioned that since the notice was dated 19.03.2019, it would get barred by limitation on 18.03.2021 and be kept pending till the decisions is taken by the Board. The said instructions appear to have been issued to extend the period in terms of Section 28(9A) of the Customs Act. In terms thereof, if the proper officer is unable to determine the amount of the duty for the reason of a specific direction being issued by the Board for keeping the matter pending, then the time specified in Sub-section (9) shall apply not from the date of notice but from the date when such reason ceased to exist. 45. It is the case of the Revenue that the amended provision of Section 28 of the Customs Act is not applicable in the present case for the reason that the impugned SCN was issued prior to the Finance Act, 2018, coming into force. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond its control which prevented it from moving with reasonable expedition. This principle would apply equally to cases falling either under the Customs Act, the 1994 Act or the CGST Act." 18. The record also shows that there are several other orders/judgments have been passed by various authorities following the same reasoning and rationale, including the following decisions: - Nanu Ram Goyal v. Commissioner of CGST and Central Excise, Delhi, [(2023) 6 Centax 148 (Del.)] - Gala International Pvt. Ltd. v. Additional Director General, Directorate of Revenue Intelligence, Delhi and Ors, 2023 SCC OnLine Del 6073 - Parle International Limited v. Union of India & Ors. [MANU/MH/196S/2020] - Union of India vs. ATA Freight Line (I) Pvt. Ltd. [Supreme Court Order dated 10.02.2023- SLP (Civil) Diary No. 828/2023]; - Sushitex Exports India Ltd. And Ors. Vs. The Union of India and Anr. [2022-TIOL-123-HC-MUM-CUS] - Sidhi Vinayak Syntex Pvt. Ltd. v. Union of India [2017 (352) E.L.T. 455 (Guj.)] - Shree Shakambari Silk Mills vs. Union of India [2018 (13) G.S.T.L. 279 (Guj.)] In all of these cases, the Court has examined the facts and has also considered as to whether the placing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1, 2020 under section 129D (2) of the Customs Act, 1962. This court held as under (page 305 of 14 GSTR-OL) : "26. When this court had taken cognizance of the grievance made by the petitioner and was in seisin of the matter fixing October 6, 2020 for consideration, it was highly improper on the part of Commissioner of Customs (Import-II) to have passed the order dated October 1, 2020 without any intimation to or taking leave of the court. It needs no reiteration that when the court, that too the High Court, is in seisin of a matter, an administrative or executive authority cannot start a parallel proceeding on the very same subject matter at its own ipse dixit and record a finding. It would amount to interfering with the dispensation of justice by the courts. In the instant case, when the court was set to examine the grievance of the petitioner regarding non-release of the goods despite the order-in-original, what was sought to be done was to present the court with an order passed in the midst of such examination keeping the court totally in the dark saying that the order-in-original suffers from illegality or impropriety directing the subordinate authority to apply to the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicated between 2008 and 2016. Even if the date is reckoned from 13th May, 2014 the Mangli Impex decision came only on 3rd May, 2016 and the matter has been placed in the callbook on 29 June, 2016. A few months later, it was retrieved on 3rd January, 2017. Thereafter, impugned SCN was again put in the call book on 3rd November, 2017 and taken out from the call book on 3rd May, 2019. Further, in view of the judgment of the Supreme Court in M/s Canon India (supra), the impugned SCN was again transferred to the call book on 17th March, 2021 and taken out from the call book on 31st March, 2022. 23. A perusal of the above would show that the impugned SCN, which was issued way back in 2008, due to repeated placing in the call book has not been adjudicated for so long. Repeated placing and removing from the call book is not a valid justification for non-adjudication of the impugned SCN for about 15 years. Moreover, the gaps between the said periods is also inexplicable. Hearing notices have been given to the Petitioners but there is no reason for non-adjudication of the impugned SCN for long period. The present case is fully covered by the decisions of the Coordinate Bench of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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