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2022 (8) TMI 343 - HC - CustomsLiability of interest in terms of Section 28AB and Notification No.47/1996-CUS (NT) dated 9th October 1996 - import of medical equipments - non compliance with the conditions attached in Notification No.64/88-CUS dated 1st March 1988 - prospective effect of section 28AB - wilful suppression of facts or not - HELD THAT:- In the case of DIWAN CHAND SATYA PAL AGGL. IMAGING RESEARCH CENTRE VERSUS UNION OF INDIA AND OTHERS [2016 (3) TMI 989 - DELHI HIGH COURT] where the facts were similar, the Delhi High Court held that when the provisions of Section 28AB did not exist in the statute at the time of import of the equipments by petitioners, provisions of Section 28AB could not have been invoked - the view expressed by the Delhi High Court is agreed upon. Moreover, Section 28AB will be applicable only where any duty has not been levied or has been short levied or erroneously refunded by reasons of collusion or any wilful mis-statement or suppression of facts by a person, who is liable to pay the duty as determined under sub-Section (2) of Section 28 - sub-section (2) of Section 28 provides that notice under sub-Section (1) should have been first issued. To demand interest under Section 28AB, in such a notice there shall be allegations of collusion or wilful mis-statement or suppression of facts by the person liable to pay duty. Only after considering the representation of the person to whom such a notice has been issued, the proper officer should have determined the amount of duty or interest from such person. Otherwise no interest under Section 28AB can be demanded. None of the pre-conditions required to demand interest under Section 28AB, viz; (a) issuance of notice under Section 28(1) containing justifiable allegations of collusion or wilful misstatement or suppression of facts by the person liable to pay duty; (b) Permit noticee to file representation in response to the notice; (c) Consider such a representation ; and (d) determine the amount of duty or interest due from such person; has been complied with. When notice under Section 28 itself has not been issued in this case, the question of determination of any duty payable under sub-Section (2) of Section 28 does not arise and consequently, any interest payable under Section 28AB also would not arise - Petition disposed off.
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