TMI Blog2014 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 28BA would indicate that if any proceeding is pending under Section 28 or Section 28AAA or Section 28B, the proper officer must record the opinion that for the purpose of protecting the interest of revenue it is necessary so to do, with previous approval of the Commissioner of Customs that he makes an order in writing for provisionally attaching any property belonging to the person on whom a notice is served under sub-section (1) of Section 28 or sub-section (3) of Section 28AAA or sub-section (2) of Section 28B, as the case may be, in accordance with the rules made in this behalf under Section 142. The provisional attachment shall cease to have effect after the expiry of six months period from the order under sub-section (1). The expec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No Objection Certificate from the Directorate of Revenue Intelligence. 2. It is submitted that even if certain proceedings are contemplated for evasion of customs duty or short payment thereof, the same can be initiated against the Companies. There are two limited companies and as Directors of the said two limited companies, the Petitioners cannot be proceeded for recovery of customs duty. At the best there is limited power to proceed against the Directors of the Company. In the present case, if allegations in the show cause notice addressed to the parties are true, then, insofar as the present Petitioners are concerned, they are proceeded against for recovery of penalty. The penalty amount is yet to be adjudicated and quantified. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah, to be covering the point in its totality. 5. However, Mr. Jetly has placed reliance on Section 28BA of the Customs Act, 1962 in order to support issuance of these communications. That provision reads thus:- Section 28BA. Provisional attachment to protect revenue in certain cases. - (1) Where, during the pendency of any proceeding under Section 28 [or section 28AAA or section 28B], the proper officer is of the opinion that for the purpose of protecting the interests of revenue, it is necessary so to do, he may, with the previous approval of the Commissioner of Customs, by order in writing, attach provisionally any property belonging to the person on whom notice is served under Sub-Section (I) of Section 28 [or sub-section (3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the rules made in this behalf under Section 142. The provisional attachment shall cease to have effect after the expiry of six months period from the order under sub-section (1). The expectation is that within this period the proceedings be concluded and the liability or duty amount is crystallized. 7. If such is the ambit and scope of the provisions and which enable the Authority to provisionally attach the properties in order to protect the interest of revenue, then, it was incumbent upon the Authority to have satisfied himself and record an opinion in the manner provided by Section 28BA. The communication dated 12-3-2013 at page 25 to Writ Petition No. 11700/2013 reads as under :- To, The Secretary, Oceanic Apartmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962. The communications by no stretch of imagination can be termed as an order in writing and in terms of the Section in question. 9. Even if Section 110 of the Customs Act, 1962 has to be resorted, there is something which is required to be recorded. In the present case, merely addressing such communications and insisting on No Objection Certificate of the Department before the immovable properties are transferred, does not come within the ambit and scope of this provision. 10. On this short ground alone, we quash and set aside the impugned communications. We are of the opinion that in the event the Revenue has any powers and traceable to one relied upon or such other provisions in the Customs Act, 1962, it may resort ..... X X X X Extracts X X X X X X X X Extracts X X X X
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