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2021 (9) TMI 1135 - AT - CustomsLevy of penalty - Scope of the Show Cause notice (SCN) - corrigendum to the SCN - Misdeclaration of quantity in the impugned consignments - shifting of goods to an unit in free trade warehousing zone in Chennai - breach of trust - HELD THAT:- In the instant case a show cause notice was issued on 29.07.2020. The office of the Commissioner of Customs, Chennai III have vide letter dt.11.09.2020 informed the Additional Commissioner of Customs of Chennai VII Commissionerate that duty with interest and penalty has been paid in full within 30 days of the receipt of the demand cum show cause notice;the proceedings are deemed to be conclusive in respect of the matters stated therein under Section 28 (6) of the Customs Act, 1962; and that necessary order in this regard be issued - the payment of differential duty penalty and interest has been made on 28.08.2020 within one month of the issue of the show cause notice and the adjudicating authority was duly informed that corrigenda dt.28.09.2020 and 01.10.2020 have been issued much after the provisions of Section 28 have been complied with - the provisions of Section 28 (5) have been fully complied and have been endorsed by the authority who has investigated the case and issued the show cause notice. Under these circumstances, revision of show cause by way of Corrigenda, aftersuch compliance and subsequent adjudication of the case is not permissible. It defeats the very purpose of the provisions of Sections 28(5) and Section 28(6) of the Customs Act, 1962. It amounts to breach of Trust and defeats the very purpose of the provisions of Sections 28(5) and Section 28(6) of the Customs Act, 1962, which understandably, is to reduce the litigation. It is a settled principle of law that a corrigendum cannot be issued altering the issues causing undue disadvantage to the Noticee. The corrigenda to the SCN were issued well after the compliance contemplated in sub-section (5) of Section 28 of the Customs Act, 1962 has been made and accepted. No reasons whatsoever have been discussed in the OIO as to why the compliance under sub-section (5) of Section 28 was not accepted and as to why the proceedings were not treated as final in terms of sub-section (6) of Section 28.Therefore, the corrigenda issued and the OIO are to be held to have been issued without jurisdiction and without authority of law. The penalty was imposed under Section 114A, even though the same was not proposed in the Show Cause Notice. Therefore, the impugned order suffers from legal infirmities and such an order cannot be upheld. In this case, the appellants having adhered to the provisions of Section 28 of the Customs Act, 1962 have rightful claim as per the provisions of Section 28(6) ibid. The issue need to be deemed to have been finalised. Appeal allowed - decided in favor of appellant.
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