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Orbit Jewellers, Omkar Jewellers, Bharat Jamnadas Jagda, Sh. Mahesh Kumar Mool Chand Kothari And C.C., Air Cargo (Exports) , New Delhi Versus C.C., Air Cargo (Exports) , New Delhi, Omkar Jewellers, Orbit Gold, Mahesh Kumar Mool Chand Kothari And Komal Jain, Director

2016 (5) TMI 80 - CESTAT NEW DELHI

Legal interpretation of the provisions of Section 28 (1A) of the Customs Act - Deposit of entire duty liability along with interest and 25% of the penalties within a period of 30 days from the date of service of SCN, therefore no further adjudication requiring confiscation of seized jewelleries or imposition of penalty - Appellant receiving gold jewellery Shri Ajit Singh/Komal Jain, who were importing the same from Dubai free of duty, in violation of the SEZ Scheme. - Held that:- the provisi .....

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d under Customs Act, 1962. While may be vested with some powers under the provisions of allied Acts, his role comes from the Customs Act. Nothing prevents respective competent authority under other Act if there is any action warranted to be taken against any person for violation of provisions of specific law. - Having deposited the full amount of duty, interest and 25% of the penalty, no further proceedings were required to be continued in terms of the provisions of Section 28(1A) and the fi .....

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Shri S. Sunil, Advocate. For the Respondent : Shri Amresh Jain. A.R. ORDER PER ARCHANA WADHWA: All the appeals are being disposed of by a common order as they arise out of the same impugned order passed by Commissioner of Customs, Air Cargo (Exports) vide which the adjudicating authority has demanded duty from M/s Omkar Jewellers, New Delhi and M/s Orbit Jewellers, Mumbai along with imposition of penalties upon him as also on the other appellants. In addition, gold jewellery recovered from the p .....

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s and M/s Orbit Gold, Mumbai. Certain amount of jewellery along with Indian currency was seized from their premises. Subsequent to the search, detailed investigations were conducted and statements of various persons were recorded. As a result , Revenue entertained a view that M/s Omkar Jewellers , New Delhi as also M/s Orbit Gold, Mumbai were receiving smuggled gold jewellery from Shri Ajit Singh/Komal Jain, who were importing the same from Dubai free of duty, in violation of the SEZ Scheme. We .....

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ng authority as also before us is that the appellants having deposited the entire duty liability along with interest and 25% of the penalties, in terms of the said provisions, no further adjudication requiring any confiscation of the seized goods or imposing penalties on the other appellants , was called for inasmuch as the said provisions of law provided for deemed conclusion of the proceedings. 4. It is also seen that during pendency of the matter before the Commissioner,M/s Omkar Jewellers an .....

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l compliance of provisions of Section 28(1A) of Customs Act, 1962. Regard being had to be aforesaid prayer, we are only inclined to direct , if an application is preferred within a week hence by the petitioners before respondent no.2, the respondent no.2 shall, after affording an opportunity of hearing to petitioners or its authorized representative, decide the matter as per law within a period of three weeks thereafter. Matter be listed on 18th November, 2010. 5. Thereafter, the matter was adju .....

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nalties on others. 7. We have heard Shri C. Hari Shankar, ld. Senior Advocate appearing for the appellants and Shri Amresh Jain, ld. A.R. appearing for the Revenue. 8. The short point required to be decided in these present appeals is as to whether when the entire duty amount along with interest and penalties stand deposited by the assessee, whether the proceedings would stand concluded in respect of all the issues involved in respect of all the appellants or whether it is still open to the adju .....

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r or exporter, to whom a notice is served under the proviso to sub-section (1) by the proper office, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under Section 28AB and penalty equal to twenty five per cent of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice. (2) The proper office, after considering the representation, if any, made by the person on whom notice is served under sub .....

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deemed to be conclusive as to the matters stated therein. 9. As is seen from above, the first proviso to Section 28(1A) provides deemed conclusion of the proceeding pending against noticee if the payment as regard the duty, interest and 25% of the penalty stands made by the noticee within a period 30 days of the receipt of the show cause notice. It is further seen that the said provision is applicable even in cases of demand having been arisen on account of collusion, willful misstatement or su .....

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es, the show cause notice was issued to the appellants on 4.2.2010 and thereafter on the application made by the appellant , document enclosed with the said show cause notice was served upon them on 8.4.2010. As such it can be safely concluded that the date of issuance of show cause notice is 8.4.2010.M/s Omkar Jewellers had deposited the entire disputed liability along with interest and penalties on 4.5.2010 i.e. within period 30 days from the date of service of the show cause notice. Similar i .....

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e to an end in terms of the first proviso to the said Section. The Honble Delhi High Court in their order dated16.9.2010 reproduced above directed the said appellants to file an application within a period of one week before the adjudicating authority who would decide the matter as per law. Such an application stands made by the appellant. The appellant s first grievance is that the proceedings do not stand adjudicated by the Commissioner within the period granted by the Honble High Court and .....

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ion, we find that the said section is a beneficial piece of legislation with intention to reduce the litigation proceedings where the noticee satisfies the condition of the said Section. As has already been observed that the said provision of law provides deeming concept of closure of the proceeding except the proceeding under provision of Section 135, 135A and 140 on full compliance of the main clause of Section 28(1A). There is no dispute about the fact that the appellants have satisfied the c .....

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interpreted by the Hon ble Supreme Court in the case of P L Kantha Rao and others vs. State of A.P. and others - (1995) 2 Supreme Court Cases 471 wherein it was observed that the word proceeding engrafted in Section 29 of the A.P. Administrative Tribunal must be understood in a broader perspective. The word proceeding would depend upon the scope of the enactment wherein the expression is used with reference to a particular context where it occurs. The proviso to Section 28(1A) uses the expressio .....

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5% of the duty amount as penalty within 30 days of the receipt of the show cause notice thereby dispensing with the rigours of adjudication procedure. This is an additional facility given to the Trade to settle the dispute at an early stage to reduce litigation and also aid in collection of tax dues more expeditiously. The scheme is optional and not compulsory. The assessee has the further option of using the proposed facility in full or in part. In case of part payment, the remaining amount wil .....

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unal has taken note of the said provision as also the Boards Circular in various decisions and has categorically held that on compliance with the amended provision, as regards the deposit, no further proceeding can continue before the adjudicating authority. Reference can be made to the Tribunal decision in the case of Sonam Clock Pvt. Ltd. vs. C.C.E. Rajkot - 2012 (278) ELT 263 (Tri-Ahmd.) as also to another decision of of the Tribunal in the case of C.C.E. Vapi vs. Technovinyl Polymers Limite .....

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n discharge of duty liability along with interest and 25% of penalty. By referring to the provision of Section 13 of General Clauses Act, 1897, it was observed that the words other persons used in said Section are to include co-noticees/persons llinked with allegation of contravention of Central Excise Rules, 1944. By observing so, the Tribunal rejected the Revenue s stand that the proceeding for imposition of separate penalty under Rule 26 would continue. It was held that adopting Revenues s .....

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ve opportunity to manufacturer to settle the duty dispute immediately on receipt of show cause notice thereby avoiding litigation. 13. Though we note that the above decisions were mainly in the context of the Central Excise provisions but Section 11A of the said Act is pari materia to Section 28(1A) of the Customs Act. As such , the ratio of the above decisions would squarely apply to the facts of the present cases also. 14. We further note that proviso to Section 28(1A) uses the expression as t .....

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sweep of said proviso and by adopting artificial interpretation to defeat the statutory intention. It is well settled law that the legislative intent, extending certain beneficial provision to the assessee, should not be made frivolous by interpreting the provision in a particular manner other than the one which reflects upon such intent. 15. We find no justification for appreciating the example given by the Commissioner in the impugned order, referring to a case of import of horse with an infe .....

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e proceedings for the confiscation of the jewelleries were also proposed under Customs Act only. In the case of animal, if the animal requires to be destroyed under the Livestock Importation Act, 1898, the same would be proceeded by the competent authority. The provision of Section 28(1A) cannot be interpreted to the effect that all the proceedings against the importer under all the Acts would be deemed to be concluded. The said provisions are applicable only in respect of proceedings under Cust .....

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