TMI Blog2015 (12) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case the issuance of show cause notice is prescribed by the law as a condition precedent to the commencement of proceedings and it must be addressed correctly, otherwise it will be treated as an invalid one. In Commissioner of Income Tax, Gujarat vs. Kurban Hussain Ibrahimji Mithiborwala [1971 (9) TMI 9 - SUPREME Court], a notice under Section 34 of the Indian Income Tax Act, 1922 was found by the Supreme Court to be invalid as referring to a wrong year and the entire proceedings were held to be void for want of jurisdiction. It is significant to note that the statutory notice is notice made by legislative enactment. Valuation - Demand of duty on additional amount of US$ 10 PDMT as commission to their overseas agents cannot be levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Kutch Salt Allied Industries Limited (in short M/s. The Kutch), filed shipping bills for export of Iron Ore Fines. Show cause notice dated 06.09.2013 was issued to M/s. Terapanth proposing for finalisation of assessment and demand of differential duty on finalisation of the assessment in respect of two shipping bills both dated 10.04.2012 under Section 18 (2) of the Customs Act, 1962. Further, it was proposed to demand of duty along with interest and to impose penalty, on undervaluation of goods in respect of other three shipping bills dated 27.09.2011, 25.07.2011 and 03.05.2011 under Section 28 of the said Act, 1962. In the case of M/s. The Kutch, a show cause notice dated 17.01.2014 was issued proposing finalisation of assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21.09.2015 and the learned Authorised Representative for the Revenue sought time to take instructions from the Commissionerate on this issue. Today, the learned Authorised Representative placed a copy of letter dated 13.10.2015, issued by the Principal Commissioner, Customs, Customs House, Kandla addressed to Additional Commissioner (AR), CESTAT, Ahmedabad. The relevant portion of the said letter dated 13.10.2015 is reproduced below:- 2. The status of Shipping Bills have been checked online and the EDI System shows the status of all the Shipping Bills (involved in the matter in respect of M/s Terapanth Food Pvt. Ltd M/s The Kutch Salt Allied Industries Ltd) as F which implies that all these Shipping Bills, detailed as under, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notices, we find that it has been proposed to assess two Shipping Bills in each case, finally under Section 18(2) of the Customs Act, 1962. It has also been proposed demand of differential export duty, subsequent to such final assessment under the provisions of Section 18(2) (a) of the said Act, 1962. In this context, show cause notice dated 06.09.2013 in the case of M/s. Terapanth, may be referred, as under:- The Shipping Bill Nos. 8410415 and 8412947 both dated 10.04.2012, wherein the assessment is provisional, should not be assessed finally, by charging the export goods to appropriate duty @ 30% ad valorem, under the provisions of Section 18(2) of the Customs Act, 1962, read with Section 17, ibid. 8. Section 18 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(1971) 82 ITR 821 (SC), a notice under Section 34 of the Indian Income Tax Act, 1922 was found by the Supreme Court to be invalid as referring to a wrong year and the entire proceedings were held to be void for want of jurisdiction. It is significant to note that the statutory notice is notice made by legislative enactment. 9. The other issue is undervaluation of the export goods vide Shipping Bill Nos. 5529529 dated 27.09.2011, 4696772 dated 25.7.2011 and 3508730 dated 03.5.2011 in the case of M/s. Terapanth and Shipping Bills Nos. 5455422 dated 17.09.2011, 5599565 dated 27.09.2011 and 5739005 dated 07.10.2011, in the case of M/s. Kutch. The learned Advocate submits that the addition of 10US$ PDMT on the price is only on the basis of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e levied mainly on the basis of statement, without examining documents. In our considered view, the appellant should be given an opportunity to place the documents before the adjudicating authority in respect of actual freight and commission on their agents, in the interest of justice. However, the demand of FOB price as cum-duty price for determination of export duty, as held by the Tribunal in the case of Sesa Goa Limited (supra), is liable to be upheld. 12. The adjudicating authority imposed penalty on Shri Babulal Singhvi as he knew that the contract was incorrect with regard to the value of the goods. We find that the issue of FOB price treating as cum-duty price was decided by the Tribunal and the appeal is pending before the Honb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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