TMI Blog2012 (11) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of such order should be taken to be the starting point for the period of limitation. There is no provision in Section 129D of the Customs Act, which provides for enlargement of the period of limitation in respect of fraud. In this respect one may make a comparative analysis of Section 28 of the Customs Act and that of Section 129D of the said Act. the plea of existence of a departmental practice of subsequently passing a reasoned order and the claim that the subsequent communication of such reasoned order ought to be starting point of limitation in respect of Section 129D of the Customs Act is wholly untenable. Allegations of fraud cannot alter the period of limitation specified in subsection (3) of Section 129D of the Customs Act and that question is also answered in the affirmative - GA No. 2617 of 2011 - - - Dated:- 23-12-2011 - K.J. Sengupta and Joymalya Bagchi, JJ. REPRESENTED BY : Shri Shibdas Banerjee, Sr. Advocate, for the Appellant. Ms. Bhargav, Advocate, for the Respondent. [Order]. The Court : This is the second bout of litigation between the parties before this Court The appellant/importer has challenged the order dated 28th Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking order of assessment on 16-2-2009 which is claimed to have been communicated to the Commissioner on 24-2-2009. Thereafter, the Commissioner sought to exercise his powers under Section 129D of the Customs Act and by order dated 20-5-2009 passed an order authorizing appropriate officer to apply for review the aforesaid order of assessment dated 8-9-2008. 4. Pursuant to such order, a review application was filed on behalf of the Customs Authorities before the Commissioner (Appeals) on 27-5-2009. The Commissioner (Appeals) by order dated 28-7-2009 set aside the order of assessment and allowed the review application filed on behalf of the Customs Department. The appellant/importer appealed against such order passed by the Commissioner (Appeals) before the Tribunal and the same was disposed of by the tribunal on 9-11-2009 by a non-speaking order. This came to be challenged before this Court in Customs Appeal No. 14 of 2009 whereby the matter was remanded to the tribunal to decide the issue of limitation first and thereafter to decide on other points. 5. Pursuant to such order of remand, the Tribunal has passed the impugned order dismissing the appeal of the appellant/importer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10. In support of his contention he referred to a decision of the Larger Bench of the Tribunal reported in 2003 (153) E.L.T. 226. 11. Per contra, Ms. Bhargav, learned advocate appearing for the Customs Department submitted that it was the prevailing practice that the order of assessment is followed by a more elaborate and speaking order and the date of communication of such speaking order is the starting point of limitation for the purpose of sub-section (3) of Section 129D of the Customs Act. 12. Learned counsel further submitted that the initial assessment was made on the basis of the fraudulent misdeclaration made by the appellant/importer which was subsequently discovered when the goods were subjected to more intensive scrutiny by bursting the bales by the DRI officers. She further contended that in view of the new facts discovered in the course the subsequent inquiry by DRI fresh show cause notice for levying additional duty and penalty has been imposed upon the appellant/importer under Section 28 of the Customs Act. A writ petition (W.P. No. 2736 (W) of 2009) was moved by the appellant/importer before this Hon ble Court challenging the action of the Customs Authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority on 8-9-2008 and on the next date was acted upon by the appellant/importer after the same was communicated to him. It has further been held by the Tribunal, as follows : ..On 11-9-2008, that is after passing of the order and before clearance of goods from the warehouse, the Directorate of Revenue Intelligence (DRI) informed the Commissioner about information received by them that the goods declared under the Bill of Entry were assessed on the basis of fraudulent information furnished by the importer and the examination of goods conducted by the departmental officers was not adequate to unearth the fraud. The Commissioner called for the file and passed it on to DRI for further investigation. DRI conducted very detailed examination of the goods and unearthed fraudulent declaration of the goods .. 20. The aforesaid observation in Tribunal order makes it clear that the file containing the order dated 8-9-2008 had been called for by the Commissioner and the same was placed before him and after perusing the same he passed it on to DRI for further investigation. Such finding of fact by the Tribunal has not been challenged before us. This makes it evidently cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. We are constrained to hold that purported speaking order passed after 5 months from the date of assessment is unwarranted under provision of Section 17(5) of the said Act. We are of the opinion that since the earlier order dated 8-9-2008 had already been placed before the Commissioner and the Commissioner had acted upon it, it cannot be said that the subsequent communication of reasons in support of such order should be taken to be the starting point for the period of limitation. 23. The Tribunal has held that the order was procured by fraud and hence the period of limitation would not operate in this case. We are unable to accept such contention of the tribunal, that the order was passed on the ground of fraud. We are of the view that the alleged plea of fraud is not countenanced as the appellant placed everything before the authority. Even the authority verified the market price, and without accepting the valuation by the appellant in the bill of entry, the concerned official has fixed his own valuation. Hence, question of practice of fraud as to the valuation of the goods did not and cold not arise. We failed to understand how the fraud could be said to have been practiced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 (86) E.L.T. 460 (S.C.) (Union of India v. Jain Shudh Vanaspati Ltd.) the issue which fell for decision was whether the department had the power to issue a show cause notice under Section 28 or Section 124 of the Customs Act unless an order of clearance under Section 47 has been revised. In the instant case we are not concerned with the legality of the show cause notice issued upon the appellant/importer and the issue which falls for in the instant case is entirely different from what has been decided in the said case. 29. Similarly, in the case reported in 2002 (139) E.L.T. 12 (S.C.) (Union of India v. R.C. Fabrics (P) Ltd.) it was held that principle of res judicata or constructive res judicata does not apply in respect of adjudication proceedings. We have no quarrel with such proposition of law. However this issue does not fall for decision in the instant case and the said judgement is also of no help to adjudicate the matter in issue. 30. We are unable to accept the contention of Mr. Banerjee that on confiscation of the goods the government becomes the owner of the property. It is true that by the provision of law it will appear once the confiscation is made by an express ..... X X X X Extracts X X X X X X X X Extracts X X X X
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