TMI Blog2016 (11) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 because, unlike the other two laws, each transaction is discrete and separate with no registration or status as ‘assessee’ or ‘importer’ except during the pendency of a consignment for clearance. Assessment is not an exercise in value judgment, serendipitous divination or inspired revelation. Specific Rules have been notified to ensure consistency and objectivity. These Rules are the distillate of experiences and wisdom of, not just a people but, peoples. Non-acquiescence of the propriety and sanctity of the Rules is to betray an ignorance or obduracy that does no credit to the organizational commitment to professionalism. Valiantly attempting to assure that the impugned order is legal and proper, learned Authorized Representative contends that no such error has been committed. It would appear that Revenue prefers to ignore the test of relevancy of statements in Section 138B(2) of Customs Act, 1962 as it applies to adjudication proceedings; the truth of any statement that has not the support of any other corroborative evidence is ascertainable only when the authority concerned admits that as evidence after examining the deponent as a witness. The statements recorded und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation, M/s. Goplaji Heavy Lifting paid ₹ 1,00,00,000 by pay orders dated 20th November 2010 and 20th December 2010. The investigation alleged that one Madan Lalwani was the main executor of clearing of cranes and other machinery for clients of M/s. M Dharamdas Co and that he used to get cranes assessed at value computed on the rate of ₹ 25-28 per kg of lifting capacity which had later increased to ₹ 40 per kg at the time of import. Investigators also identified the illicit channel used to funnel the differential value payable on the undervalued imports. In the proceedings leading to the impugned order-in-original No. CAO/2014/CAC/ CC(I)/AB/GrV, dated 4th September 2014, Commissioner of Customs (Import), New Customs House, Mumbai, invoked Rule 10A/Rule 12 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988/2007 to reject the value of ₹ 4,94,78,611 declared at the time of import of cranes by M/s. Gopalji Heavy Lifters, re-determined the value at ₹ 7,34,42,674 and confirmed the differential duty of ₹ 51,27,658 on 12 of the cranes with revised value of ₹ 6,07,37,674 under Section 28 of Customs Act, 1962 along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut allowed to be redeemed on payment of fine of ₹ 45,00,000 and penalty of ₹ 67,27,903 imposed on importer under Section 114A of Customs Act, 1962. Penalties of ₹ 17,00,000 each under Section 112 and Section 114A of Customs Act, 1962 and ₹ 5,00,000 each under Section 112(a) and Section 114A of Customs Act, 1962 was imposed on Jitesh Vador and Madan Lalwani respectively besides a further penalty of ₹ 17,00,000 again under Section 114A on the importer. 4. We notice at the outset that there are some anomalies in the impugned order which, once dealt with, need not come in the way of scrutiny of the rest of the order which may, thereafter, be disposed of on merit. The imposition of penalties twice on the importer under Section 114A of Customs Act, 1962 has no rationale. Likewise, the imposition of penalties on the individuals under Section 114A of Customs Act, 1962 is without authority of law as that provision is liable to be invoked only against the person liable to pay the duty under Section 28 which has been held by the adjudicating authority to be M/s. Gopalji Heavy Lifters and M/s. Dhanlaxmi Cranes. These are, therefore, set aside. We also observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Customs Act, 1962 was to be invoked only by the Commissioner in the event that short-levy or non-levy arising from suppression, willful mis-statement, collusion etc. and with the period of limitation thereby extended to five years from the relevant date. In such a situation, the normal period was irrelevant. Today, owing to the blurring of hierarchical distinction, the proviso is assumed to be an empowerment to extend the period of demand beyond six months from the relevant date. The legal position has not morphed : the proviso has to be invoked when the specified ingredients are present and not merely when the demand relates to duties assessed more than six months prior to issue of notice. Section 28 has a specific role which does not run parallel to the assessment provisions but is enacted for invoking when assessment has led to short-levy or non-levy of duty. A number of decisions of the Tribunal have held that, notwithstanding the subsistence of a provisional assessment, Section 28 could be invoked but in all of these, it is found, the reasons for resorting to provisional assessment have no bearing or connection with the grounds upon which recovery is attempted under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition has been upheld in the case of India Cements Ltd. v. CCE, Madras [1984 (18) E.L.T. 499 (TRB)] We do not find ourselves in concurrence with the above proposition as it treads dangerously on the limits erected by the sovereign legislature on the powers of tax collectors under Customs Act, 1962. Under the scheme of Customs Act, 1962, the levy is in rem and every import, distinguished by separate bills of entry, stands on its own for assessment and collection of duty. Duty is paid in compliance with the assessment under Section 17 or 18, as the case may be, and under no other provision. 7. There can be discounting of conscience among the good denizens of a nation and it is well within the realms of rational reality that importers may, of their own volition, come forward to pay duty that was short-levied without waiting for a demand under Section 28 or seizure of offending goods under Section 110 of Customs Act, 1962. Unfortunately, the temporal facet of the legislature shies away from foraying into the spiritual domain to acknowledge, by a special provision, a special enabler for conscience in duty collection. And that gap has ensured that there is no legal sanctity to vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time barred. We think not . The demand was quite right to the extent that the money demanded was due to the Central Excise revenue. The only flaw in the demand is that it was issued outside time. 17. It is for the first time that during the course of arguments before us that it came out that the demand made by Central Excise for recovery of duty from the appellants was time-barred. Earlier this point was not raised before any other authority. Even in the grounds of appeal this point was not taken. It is nowhere on records that the appellants were forced to pay this duty amount or that any coercive measures were adopted by the department to make the appellants pay that duty amount. What is apparent is, a demand was raised by the Department for payment of the duty amount which the appellants were to pay and in pursuance of that demand, the appellants paid that duty amount which might be barred in time. 9. It is apparent that the adjudicating authority has either not read the decision supra and was misguided into believing what was impressed upon him or, being aware of its inapplicability, deliberately avoided citing the relevant extract in the hope that the citation would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essionalism. Valiantly attempting to assure that the impugned order is legal and proper, learned Authorized Representative contends that no such error has been committed. He relies upon the decision of the Tribunal in American Eye Light Pvt. Ltd. v. Commissioner of Customs (Import), Mumbai [2013 (290) E.L.T. 720 (Tri.-Mumbai)], Commissioner of Customs, Chennai v. MR Associates [2013 (297) E.L.T. 504 (Mad.)], Amee Electronics Ors. v. Commissioner of Customs Preventive, Mumbai [2014-TIOL-2833-CESTAT-MUM = 2014 (303) E.L.T. 115 (Tribunal)], Sunrise Ente v. Commissioner of Customs, Mumbai [2011 (274) E.L.T. 200 (Tri.-Mumbai)], Kemtech International Pvt. Ltd. v. Commissioner of Customs, New Delhi [2013 (292) E.L.T. 336 (Tri.-Del.)], Kanungo Co. v. Commissioner of Customs, Calcutta [1983 (13) E.L.T. 1486 (S.C.)], KP Abdul Majeed v. Commissioner of Customs, Cochin [2014 (309) E.L.T. 671 (Ker.)], N.S. Mahesh v. Commissioner of Customs, Cochin [2016 (331) E.L.T. 402 (Ker.)] et al. 12. We cannot fail to be impressed by the sheer numbers of case law collated by learned Authorized Representative but we would be failing in our duty if we do not make plain that too much of a good thing ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er case is not all decisive... Precedent should be followed only so far as it marks the path of justice, but you must cut the deadwood and trim off the side branches else you will find yourself lost in the thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it. We now turns to assess the applicability of the decisions cited by learned Authorized Representative which affirm that allowing of cross-examination is an exercise of discretionary authority and that legality of recovery of dues that are barred by limitation of Section 28 of Customs Act, 1962 is not questionable. We have already addressed the second issue. 14. It would appear that Revenue prefers to ignore the test of relevancy of statements in Section 138B(2) of Customs Act, 1962 as it applies to adjudication proceedings; the truth of any statement that has not the support of any other corroborative evidence is ascertainable only when the authority concerned admits that as evidence after examining the deponent as a witness. The decisions cited in support of Revenue, in which self-incriminatory statements were found acceptable, have been rendered in the context of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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