9911796707
TMI Blog2021 (9) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of investigations, a show cause notice dated 29.07.2020 was issued proposing confiscation of goods, revision of value of declared and imposing penalties. The appellants, availing the provisions of Section 28 (5) of Customs Act, 1962, have paid the differential duty, interest and penalty of 15% on 28.08.2020 and requested the department to conclude the matter in terms of Section 28 (6) of Customs Act, 1962. The appellant submits that this being the situation, the department has issued two corrigenda to the show cause notice and the impugned order was issued. 2. Learned Counsel for the appellant submits that SIIB vide communication dated 11.09.2020 informed the Additional Commissioner of Customs that in view of the payments made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed the Additional Commissioner of Customs of Chennai VII Commissionerate that duty with interest and penalty has been paid in full within 30 days of the receipt of the demand cum show cause notice;the proceedings are deemed to be conclusive in respect of the matters stated therein under Section 28 (6) of the Customs Act, 1962; and that necessary order in this regard be issued. We find that payment of differential duty penalty and interest has been made on 28.08.2020 within one month of the issue of the show cause notice and the adjudicating authority was duly informed that corrigenda dt.28.09.2020 and 01.10.2020 have been issued much after the provisions of Section 28 have been complied with. 5. For better appreciation, the relevant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (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 sub-section (1) in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of two years shall be computed from the date of receipt of information under sub-section (5)." 6. A reading of the above provisions indicates that once the duty, penalty etc. has been paid under the provisions of sub-section (5), the only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962 has been made and accepted. No reasons whatsoever have been discussed in the OIO as to why the compliance under sub-section (5) of Section 28 was not accepted and as to why the proceedings were not treated as final in terms of sub-section (6) of Section 28.Therefore, the corrigenda issued and the OIO are to be held to have been issued without jurisdiction and without authority of law. 7. Moreover, we find that penalty was imposed under Section 114A, even though the same was not proposed in the Show Cause Notice. Therefore, we find that the impugned order suffers from legal infirmities and such an order cannot be upheld. We find that in this case, the appellants having adhered to the provisions of Section 28 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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