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2017 (2) TMI 961 - ANDHRA PRADESH HIGH COURTImport of Cigarettes - confiscation - interest - penalty - levy of duty, interest and penalty to past import of cigarettes also - whether the case falls under the category of natural justice or under the category of jurisdiction? - Held that: - the case may not fall under the category of violation of natural justice. A SCN was issued to which the petitioners submitted a reply. The petitioners were granted an opportunity to appear through counsel at the time of personal hearing. Therefore, the petitioners cannot complain of violation of natural justice. Jurisdiction - Held that: - what could be found out from the records alone could be the subject matter of proceedings u/s 28(4). What cannot be established merely by the records cannot form the basis of the proceedings under Section 28(4) - the power u/s 28(4) cannot be invoked in cases where a claim is made that what was imported was completely different from what was indicated in the Bills of Entry. In a case where the Bills of Entry declared the goods to be Baby Diapers and the Proper Officer also cleared the goods for home consumption u/s 47(1), it may not be possible for the Department later on to contend that cigarettes concealed in Baby Diapers could have been imported and taken into the market. The 2nd respondent could not have invoked the jurisdiction under Section 28(4) in respect of the past containers. If this is permitted, it would become a matter of surmises for any officer to claim that some goods could have been smuggled into the country by concealing them behind the goods that were declared to be the goods of import in the Bills of Entry. Hence, the Orders-in- Original impugned in these writ petitions are liable to be set aside only insofar as they impose a duty, interest and penalty in respect of the past 13 containers. Petition disposed off - decided partly in favor of petitioner - the petitioners will have to avail the alternative remedies available to them in law.
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