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TMI Blog2021 (12) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... bai (for short "Respondent No. 1") redetermining the declared assessable value, levying differential duty and, penalty in respect of the Petitioners respectively. 3. Pursuant to the filing of the Writ Petition, the Dy. Commissioner of Customs, SIIB (Import), ACC, Mumbai-III has issued a communication dated 29/10/2021 (received by the Petitioners on 06.11.2021) to the Petitioners, inter alia, intimating the Petitioners to apply before the jurisdictional Chief Commissioner of Customs for compounding of their offences under the provisions of the Customs (Compounding of Offences) Rules 2005 (for short "the said Rules") in order to get immunity from prosecution subject to payment of compounding amount as prescribed under Rule 5 in terms of grant of order under Rule 4(3) of the said Rules. Petitioners have impugned the above communication in Interim Application No. 4125 of 2021 and pressed the present Petition. 4. It will be apposite to briefly state the relevant facts to adjudicate the lis raised in the petition. 4.1. The impugned order is a composite order, though common on facts, however, gives separate reasons for five entities namely Mehta Infocom, Akash Tori Infocom Service Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r No. 1 sought an adjournment for 60 days to enable the Petitioners to appraoch the Settlement Commission. 4.10. Hearing was fixed on 30.01.2020 and 13.02.2020. Thereafter on 12.02.2020 and 29.02.2020, Petitioners by separate letters sought time for 30 days to enable the Petitioners to approach the Settlement Commission. 4.11. Finally on 13.02.2020 personal hearing was given to the Petitioners and submissions were made before the Respondent No.1 adjudicating authority by the Petitioners' representative. 4.12. It is asserted in the petition that some time on 24.03.2020 the Petitioners had prepared Demand Drafts for the differential duty, penalty and interest and were in the process of submitting the same to the authorities, but due to the Covid-19 lockdown the Petitioners could not submit the same. 4.13. In the meanwhile, Petitioners addressed e-mail dated 11.03.2020 to the Respondent No.1 adjudicating authority for seeking some more time to enable the Petitioners to file the Settlement Application before the Settlement Commission. 4.14. Respondent No.1 passed the impugned order on 24.03.2020, inter alia, holding that the Petitioners' were liable for payment of differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the Order-in-Original dated 24.03.2020 is a detailed reasoned order in respect of each of the Petitioners' case and the only grievance made by the Petitioners in the Petition is that the Petitioners were awaiting the receipt of a fresh show-cause-notice pursuant to which the Petitioners desired to approach the Settlement Commission for settlement of their liabilities; however the same had not been done till date; the Petitioners are guilty of gross delay and laches in not approaching the Settlement Commission despite opportunity and time being given to the Petitioners. He, therefore, submitted that the impugned order cannot be faulted with as there is no challenge to the impugned order on merits by the Petitioners. Hence, he has prayed for dismissal of the Petition. 7. We have perused the pleadings and the Order-in-Original dated 24.03.2020. Submissions of the parties have been considered, which are on pleaded lines. 8. We may state that on a reading of the Order-in-Original dated 24.03.2020 annexed at Exhibit 'D' to the Petition, it cannot be argued that the said order can be termed as an ex-parte order as alleged by the Petitioners. The Petitioners were du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commission. Again vide email dated 11.03.2020 they reiterated the same. 4 M/s. Rainbow Digitech Pvt Ltd 08.07.2019 16.10.2019 30.01.2020 26.07.2019 08.11.2019 13.02.2020 Vide letters dated 19.01.2019 informed approaching Settlement Commission and hence not attended PH. On 13.02.2020, PH was attended Ms. Ami Mehta on behalf of the said company for limited purpose of intimating regarding filing application before Settlement Commission. Vide mail dated 2.03.2020 and 11.03.2020, they reiterated the same. 2.2 With regard to PH dated 13.02.2020, PH was attended by Ms Ami Mehta (Senior Manager, Commercial) on behalf of all the aforesaid Noticees for limited purpose of intimating regarding filing application before Settlement Commission wherein she informed that all the Noticees were in process of filing application before Settlement Commission and submitted that proof of acknowledgment would be submitted by them by 29th February. She was also informed that adjudication would be carried out by this Office without any further Notice, to which she agreed. She also submitted letters dated 12.02.2020 from all the Noticees wherein it was informed that they were in process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven approached the Settlement Commission during the said period, the Petitioners' bonafides could have been appreciated. Instead, the Petitioners entered into correspondence with the Competent Authority seeking repeated adjournments on the ground that they were in the process of filing application before the Settlement Commission. It is seen that on 13.02.2020, the Petitioners' representative submitted that the Applications would be filed before the Settlement Commission and proof of acknowledgment would be submitted by the Petitioners by 29.02.2020. It is stated in the order that the Petitioners' representative was duly informed that on the adjourned date adjudication would be carried out to which she had agreed. 8.3 We are also at pains to observe that under the provisions of Section 28(9)(b) of the said Act, the proper offices have an obligation to determine the amount of duty or interest within a period of one year from the date of notice in respect of cases falling under Section 28(4) and considering this prescribed statutory obligation, the Competent Authority passed the Order-in-Original within the stipulated period of time as mandated which would have otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We may mention that the Order-in-Orignal was passed on 24.03.2020 against the Petitioners. The Petitioners filed the Writ Petition on 26.12.2020. The Interim Application has been filed on 24.11.2021. There is no averment in the Interim Application that the Petitioners have approached the Settlement Commission and filed the consolidated Settlement Application between the period 24.03.2020 to 24.11.2021. Nothing prevented or precluded the Petitioners from approaching the Settlement Commission during the above period. In the Petition, the Petitioners have relied upon a decision of the Madras High Court in the case of Thirumurugan Enterprises Vs. Addl. Commisisoner of C. Ex., Puducherry 2015(39) S.T.R. 563 (Mad) wherein the Petitioner's request to approach the Settlement Commission was considered and two weeks' time was granted to the Petitioners to approach the Settlement Commission. Even today, when the Petition is argued by the Petitioners, such a request at this belated stage is not made by the Petitioners before us. However, looking to the conduct of the Petitioners, the ratio of the above case does not apply to the facts of the case at hand. 8.6 Be that as it may, we do ..... 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