TMI Blog2002 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... project of substantial expansion and modernisation of its cement factory at Shahabad in Karnataka. The ACC had floated a tender inviting supply of high standard deformed steel bars. In that tender, ACC had claimed that the project was aided by the International Bank for Reconstruction and Development (for short 'the IBRD'), which would give the importer exemption from the import duty. In response to the said tender, M/s. Virgo Steels made an offer to supply 5,187 MT of steel. The offer was accepted by the ACC and the said Virgo Steels obtained an advance licence under the Deemed Export Scheme for duty-free import of the concerned steel under Notification No. 210/82. This notification specifically required that if the goods in question was not used for the purpose for which importation was permitted then the importer was liable on demand to pay a sum equivalent to the duty leviable. Sometime in November, 1988, the ACC decided to abandon the work of expansion, hence, the licence obtained under the above said scheme for importation of duty-free steel became invalid. In spite of the same M/s. Virgo Steels imported certain quantities of steel duty-free knowing very well that the expans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on M/s. Virgo Steels along with a penalty of Rs. 5 lacs. In regard to ACC, the Collector imposed a penalty of Rs. 5 lacs for having abetted the illegal import of the said sale. 4.M/s. Virgo Steels and ACC preferred their respective appeals before the Customs, Excise Gold (Control) Appellate Tribunal (for short 'the Tribunal'). The Tribunal by the impugned order though rejected the contention of M/s. Virgo Steels as to the genuineness of the imports, still allowed their appeal holding that the non issuance of show cause notice as required under Section 28 of the Act had vitiated the proceedings initiated by the Collector of Customs, hence, partially allowed their appeal. The appeal of the ACC was also allowed holding that there was no intentional or otherwise abetment by ACC because they had already informed M/s. Virgo Steels of their decision to abandon their expansion project and had also refused to give M/s. Virgo Steels a certificate justifying the import made by them. 5.It is against this order of the Tribunal made in Appeal No. C-1994/92-B2 of M/s. Virgo Steels and Appeal No. C/151/94. Bom. filed by the ACC, the abovenoted four appeals have been preferred before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddressed on 3-12-1992 - i.e. more than one and a half years after the said letter was sent to the Collector concerned. During that period of over one and a half years, the Partner of the Company who had signed the letter or anybody else on behalf of the firm, made no attempt to resile from the contents of the said letter. They have neither made any complaint nor taken any steps to get over the contents of the letter written on behalf of the firm on 30-3-1991. It is relevant to note at this stage that along with the letter, a post-dated cheque was sent and no steps were taken to stop payment against that cheque either. Before the Collector, though an oral submission was made by learned Counsel that the letter in question was obtained by coercion not even an affidavit was filed in support of that allegation. The Collector, by his order, had rejected the said contention holding that at no stage till the final submission of reply on 3-12-1992, M/s. Virgo Steels had made any grievance of coercion or any other undue influence in obtaining the letter of 30-3-1991. It is also necessary to note herein that this argument of coercion in obtaining the letter of 3-12-1992 seems not to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (4) of Section 17 makes a provision to empower the proper Officer to reassess the imported goods for duty if it is found that the assessment made at the time of importation was based on incorrect or false information. Section 142 of the Act found in Chapter XVIII provides for actual recovery of sums due to the Government. A cumulative reading of these provisions found in the Act clearly shows that the jurisdiction of a proper Officer to initiate proceedings for recovery of duty which has escaped collection, is not traceable to Section 28. The power to recover duty which has escaped collection is a concomitant power arising out of the levy of customs duty under Section 12 of the Act, and the same does not emanate from Section 28 of the Act. In our opinion, Section 28 only provides for the procedural aspect for recovery of duty, hence, any irregularity committed by a proper Officer in following the procedure laid down in Section 28 would not denude that Officer of his jurisdiction to initiate action for recovery of escaped duty but it may make such proceedings initiated by that Officer voidable. In that view of the matter, in our opinion, the term "condition precedent" u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 53), this Court negatived an argument that the requirement of Section 94 of the Representation of the People Act, 1951 cannot be waived. This argument was based on the principle that public policy cannot be waived. Rejecting the said argument, this Court held that the privilege conferred or a right created by a Statute, if it is solely for the benefit of an individual, he can waive it. It also held that where a prohibition enacted is founded on public policy, Courts should be slow to apply the doctrine of waiver but if such privilege granted under the Act is for the sole benefit of an individual as is the case under Section 94 of the Representation of the People Act, the person in whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waiver. 12.In Krishan Lal v. State of J K [1994 (4) SCC 422], this Court while considering the requirement of furnishing copy of inquiry proceedings under Section 17(5) of the J K (Government Servants) Prevention of Corruption Act, 1962 held following the judgment in V. Chettiar's case (supra) and D.N. Gorai (supra) that though the requirement mentioned in Section 17(5) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrate the statutory duty of the Revenue to demand and collect customs duty which M/s. Virgo Steels had intentionally evaded. 17.Since the sole ground on which the appeal of M/s. Virgo Steels was allowed by the Tribunal is based on non-issuance of a notice under Section 28 and we having found such a notice was not necessary in the facts and circumstances of the case, the appeal of the Revenue as against M/s. Virgo Steels has to be allowed. 18.In C.A Nos. 48-49 of 2001, M/s. Virgo Steels have, inter alia, questioned the correctness of the findings of the Tribunal as to the illegality of the import of steel made by them, the Tribunal after considering the material on record by the impugned order, has agreed with the finding of the Collector that M/s. Virgo Steels had imported the steel in question, duty-free representing that the same was being imported for utilisation in a project financed by the IBRD but was in fact sold in the open market. This finding being one of facts and having been arrived at by the Collector and the Tribunal on the basis of the material on record, we are not inclined to disturb this finding, nor, indeed, do we find any good ground to do so. Hence, we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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