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M/s. C.J. Shah & Co., Apurva M. Shah Versus The Union of India, The Commissioner of Customs (Import) , The Settlement Commission, Customs & Central Excise, Addl. Bench Mumbai

2017 (8) TMI 433 - BOMBAY HIGH COURT

Maintainability of petition - adjustment towards antidumping duty on the imported goods - time limitation - Section 28 of the Customs Act - Held that: - Admittedly the said amount was adjusted by making voluntary payment along with others by the Petitioner though it was time barred. The law is settled that the Revenue Department/Authorities are not required to issue a demand beyond 5 years period under Section 28 of the Customs Act. By impugned order dated 30.05.2016, the said amount is adjusted .....

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o prescribed. The position of law of Bill of Entry beyond the period of 5 years is clear. Therefore, on this sole ground, we are inclined to consider the case of the Petitioner as contended - The bar of Section 127J needs to be considered from the point of the authority in question. But, in view of above observation on admitted position on record, as case is made out, we are inclined to invoke Article 226 of the Constitution of India, in the present case. The parties cannot be remedyless if case .....

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(for short, Customs Act). 2 The Petitioners have filed the present Petition and prayed to quash and set aside impugned order dated 30.05.2016 passed by Respondent No.3 The Settlement Commission, to the extent it purported to allow adjustment of ₹ 16,99,781/towards antidumping duty on the imported goods covered under Bill of Entry dated 3.4.2007 and imposed penalty of ₹ 50,000/on Petitioner No.2. 3 The facts of this case are as under: Petitioner No.1 is a partnership firm duly regist .....

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dia, Messrs. Pluto International and Messrs. S. Nihar & Co. The Petitioners had ordered Sodium Saccharin of Taiwan Origin and the said orders had been confirmed by the said Indenters on behalf of the foreign Supplier High Trans Corporation, Taiwan. Pursuant to the said Indents, the Petitioners had established irrevocable Letters of Credit in favour of the said foreign Supplier for payment of price of the said goods. The said foreign Supplier shipped the goods from the port Kaohsiung in Taiwa .....

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goods on payment of duty as assessed by the proper officer of customs. No antidumping duty was assessed on the said goods. 4 During March 2012 to May, 2012, the officers of DRI, Mumbai, recorded statements of Petitioner No.2, partner of the Messrs. Indenter Pluto International, Mr. Rajan Joshi and partner of the Indenter Messrs. S. Nihar & Co., Mr. Samit Mehta in connection with the said imports of Sodium Saccharin made by the Petitioners from the said High Trans Corporation, Taiwan as accor .....

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s in respect of which the said amount was deposited. On 26.03.2012, the Deputy Director (F Cell), DRI MZU, Mumbai forwarded the said Pay Orders aggregating to ₹ 1,98,11,000/to the Cashier, Accounts Department, JNPT, Nhava Sheva Accounts the Petitioners for depositing in the Government Treasury towards customs duty. On 16.05.2012, vide without prejudice letter, the Petitioners informed the Additional Director General, that the Petitioners had deposited ₹ 1,98,11,000/towards the duty a .....

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by their letter dated 20.10.2012. By the said letter, the Petitioners, inter alia, contended that no antidumping is short paid by them and in any event demand is time barred. 7 On 14.10.2015, subsequent to the hearing held in May, 2015, the DRI again recorded statements and thereafter issued an Addendum dated 14.10.2015 to the Show Cause Notice dated 17.5.2012. On 16.11.2015, the Petitioners filed an application, under Chapter XIVA of the Customs Act, seeking the settlement of the case of the P .....

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t, Respondent No.2, after referring to the errors in calculation of duty and error in quantity in respect of Bill of Entry No. 4693667, calculated and worked out the duty of ₹ 1,82,85,223/payable by the Petitioners as against the demand for ₹ 2,15,73,371/made in the show cause notice. In paragraph 11 of the said report, Respondent No.2 stated that his office has no objection to settlement subject to, inter alia, confirmation and adjustment of the Antidumping duty of ₹ 1,82,85,2 .....

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rs, the revenue is allowed adjust the duty of ₹ 16,99,981.00 on the goods covered by Bill of Entry 710462 dated 3.4.2007, which was beyond the period of five years. After adjusting the said amounts of ₹ 1,82,85,223/and ₹ 16,99,981/= ₹ 1,99,85,204/out of the amount of ₹ 2,32,06,530/paid by the Applicants, the balance ₹ 32,21,326/has been ordered to be appropriated towards interest liability. The Revenue was directed to calculate the balance due interest and com .....

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t which according to the DRI is required to be paid by the Petitioners. The Assistant Director, after referring to the paragraph 9.1 of the Order No.92/Final Order/Cus/SBR/2016 of Respondent No.3, inter alia, directed Petitioner No.1 to pay ₹ 28,72,835.41 immediately and if already paid, submit the copy of the challan to his office. In view of the error in the said order dated 30.5.2016 apparent on the face of the record, the Petitioners filed an application for rectification before Respon .....

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8 August, 2016, in response to the Petitioners' Advocates aforesaid letter dated 29 July, 2016, inter alia, informed that the Bench has not acceded to the Petitioners' request as prayed for vide the aforesaid letter dated 29.07.2016. Hence this Petition. 13 The relevant provisions of the Customs Act, 1962 (for short, Customs Act) are Sections 28, 28AB, 28AA and 127C( 5). Section 28 of the Customs Act, 1962 reads thus: SECTION 28. [Recovery of [duties not levied or not paid or shortlevied .....

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d] or which has been shortlevied or shortpaid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of, (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under section 28AA or the amount of interest whi .....

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lty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest: [Provided that where notice under clause (a) of subsection (1) has been served and the proper officer is of the opinion that the amount of duty along with interest payable thereon under section 28AA or the amount of interest, as the case may be, as specified in the notice, has been paid in full within thirty days from the date of receipt of the notice, no penalty shall be levied and th .....

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at subsection and the period of [two years] shall be computed from the date of receipt of information under subsection (2). (4) Where any duty has not been [levied or not paid or has been short-levied or short-paid] or erroneously refunded, or interest payable has not been paid, partpaid or erroneously refunded, by reason of, (a) collusion; or (b) any wilful misstatement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper .....

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ty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or the employee of the importer or the exporter, to whom a notice has been served under subsection (4) by the proper officer, such person may pay the duty in full or in part, as may be accepted by him, and the interest payable thereon under section 28AA and the penalty equal to [fifteen per cent.] of the duty specified in the notice o .....

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has been paid in full, then, the proceedings in respect of such person or other persons to whom the notice is served under subsection (1) or subsection (4), shall, without prejudice to the provisions of sections 135, 135A and 140 be deemed to be conclusive as to the matters stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then, the proper officer shall proceed to issue the notice as provided for in clause (a) of subse .....

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all be excluded. (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice. (9) The proper officer shall determine the amount of duty or interest under subsection (8),- (a) within six months from the date of notice, where it is possible to do so, in respect of cases fall .....

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ny judgement, decree or order of any court of law, tribunal or other authority, all persons appointed as officers of Customs under subsection (1) of section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section.] Explanation 1 For the purposes of this section, "relevant date" means, (a) in a case where duty is [not levied .....

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removal of doubts, it is hereby declared that any nonlevy, shortlevy or erroneous refund before the date on which the Finance Bill, 2011 receives the assent of the President, shall continue to be governed by the provisions of section 28 as it stood immediately before the date on which such assent is received.] [Explanation 3. For the removal of doubts, it is hereby declared that the proceedings in respect of any case of nonlevy, short-levy, nonpayment, short-payment or erroneous refund where sho .....

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made in full within thirty days from the date on which such assent is received.] 14 We are inclined to consider the basic issue relating to adjustment of an amount of ₹ 16,99,981/which is applicable to goods cleared through Bill dated 3.4.2007. The demand is stated to be time barred. Admittedly the said amount was adjusted by making voluntary payment along with others by the Petitioner though it was time barred. The law is settled that the Revenue Department/Authorities are not required to .....

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of this amount by the SNC. The Petitioner's voluntary deposit, in no way, can bring the said amount within the purview of 5 years period so prescribed. The position of law of Bill of Entry beyond the period of 5 years is clear. Therefore, on this sole ground, we are inclined to consider the case of the Petitioner as contended. This is in the background also that on 18.07.2016 before the Customs and Central Excise Settlement Commission, Mumbai, Misc. Application is filed for settlement on th .....

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