TMI Blog2016 (3) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, the Department is unable to deny that neither Section 114A nor Section 28AB could have been invoked as far as the SCN issued to the Petitioner was concerned. Therefore, in the interests of justice recovery of penal interest under Section 28AB as well as the penalty under Section 114A of the Act by the department is not sustainable. Decided in favour of petitioner - W. P. (C) 3059/2003 - - - Dated:- 21-3-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr M. P. Devnath, Mr Abhishek Anand and Mr Yogendra Aldak, Advocates For the Respondents : Mr Satish Kumar, Senior Standing counsel ORDER 1. This is a writ petition that has been preferred in peculiar circumstances. The challenge in the petition is to a notice dated 5th April, 2003 issued by the Assistant Commissioner of Customs (Import General) New Custom House, Near IGI Airport, New Delhi asking the Petitioner, inter alia, to pay a sum of ₹ 49,13,969/- which comprised duty, redemption fine, interest under Section 28AB of the Customs Act, 1962 ( Act ) and penalty under Section 114A of the Act. 2. The background to the petition is that between March 1990 to December, 1992, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the nonapplicability of Section 28 AB of the Act as well as Section 114 A of the Act. 7. By an order dated 29th May, 2000, in Diwan Chand Satyapal Agarwal I.R. Centre v. CCE, New Delhi 2001 (136) E.L.T. 1116 (Tri.-Del) the CEGAT allowed the Petitioner s appeal. Specific to the question of penalty and interest, the CEGAT observed as under in para 11 of the said judgment: 11. As regards penalty under Section 114A and the interest demanded under Section 28AB, we find that the said provisions were enacted subsequent to the imports and therefore the said provisions will not be applicable in the facts and circumstances of the case. The penalty under Section 114A and interest demanded under Section 28AB cannot therefore sustain. 8. Aggrieved by the above order, the Customs Department, i.e., the Commissioner of Customs filed an appeal being Civil Appeal No. 52 of 2001 before the Supreme Court. Interestingly, in the memorandum of appeal, there was no specific ground urged as regards the non-applicability of Section 114A and 28AB of the Act. 9. The said appeal was disposed of by the Supreme Court by an order dated 21st August, 2001, which reads as under: The issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of penalty and interest under the aforementioned two provisions was not warranted. A further representation was made on 9th April, 2003 by the Petitioner and, thereafter, the present writ petition was filed. 14. On 8th May 2003, this Court while issuing notice in the petition directed the Respondent not to take any coercive steps against the Petitioner for recovery of interest (Rs.17,66,523/-) and penalty (Rs.32,47,446/-) as indicated in the impugned notice of demand dated 5th April, 2000. 15. Thereafter, on 30th September, 2003, while issuing Rule DB, the Court passed the following interim order in CM No.5190/2003: Having heard learned counsel for the parties for some time, we are of the view that the matter requires consideration. Rule D.B. Leave granted to the parties to apply for early hearing. CM No.5190/2003 We have heard learned counsel for the parties. Having perused the orders passed by the Supreme Court in Civil Appeal No.52/2001 and in petitioner s IA No.2/2001 dated 22nd April, 2002 and bearing in mind the ratio of the decision of the Apex Court in COMMISSIONER OF CENTRAL EXCISE Vs. ELEGE EQUIPMENT LTD., (2001) 128 ELT, 52 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shows that it only made a reference to Section 125(2) of the Act. There was no occasion for the Supreme Court to have considered the applicability of either Section 114A or Section 28AB of the Act. Clearly, therefore, the judgment of the Supreme Court in Commissioner of Customs v. Jagdish Cancer Research Centre (supra) was not a precedent for setting aside the order of the CEGAT and restoring the order of the Commissioner of Customs on the question of the applicability of either Section 114A or 128AB of the Act. 21. The question, therefore, that arises is whether as a result of the order dated 29th August 2001 of the Supreme Court, the entire order dated 30th September 1999 passed by the Commissioner of Customs should be held to have revived or only that portion of the order which pertained to the customs duty and interest thereon that was payable by the Petitioner, as a result of being found not eligible to avail of the exemption under the Notification No. 64/88? 22. When this issue was raised by the Petitioner before the Supreme Court by an application, the Supreme Court declined to clarify its order dated 21st August 2001. However, the Supreme Court clarified that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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