9911796707
TMI Blog2023 (12) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... let a reply be filed within a period of three weeks from today. The petitioner shall have a week thereafter to file a rejoinder affidavit. 2. Let the writ petition be called again on 13.02.2024. 3. Having heard learned counsel for the parties we find that the challenge to the Show Cause Notice [„SCN'] dated 01 September 2023 would merit further consideration in light of the following facts. 4. The claim of the petitioner consistently appeared to be that it was importing parts of mobile phones and the aforesaid imports came up for scrutiny before the respondents leading to the issuance of a SCN dated 25 July 2023 under Section 28(1) of the Customs Act, 1962 ["Act"] laying the following allegations: "17. On perusal of the aforemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, shall be liable, in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty under this Section. In the present case. the importer has mis-declared description of the impugned goods and evaded applicable Customs Duties in the Bills of Entry, as elaborated in above, and thus, the importer is liable to penalty under Section 112(a)(ii) of the Customs Act, 1962." 5. The petitioner was ultimately called upon to Show Cause as under: "18. Now, therefore, on the basis of the discussion here-in-above and investigations into the matter, M/s. Ismartu India Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined assessable value of Rs.1,46,83,51,738/-, imported vide Bills of Entry as detailed in Annexure-A and Annexure-B, should not be held liable to confiscation under Section 111(m) of the Customs Act, 1962; vii. Total differential duty amounting to Rs.5,30,87,373/- (Rupees Five Crore Thirty Lakh Eighty Seven Thousand Three Hundred and Seventy Three only), as detailed in Annexure - A & Annexure-B. should not be demanded and recovered from the importer under Section 28(1) of the Customs Act, 1962 along with applicable interest under Section 28AA of the Act ibid; and viii. Penalty under Section 112a (ii) of Customs Act, 1962 of the Customs Act, 1962, should not be imposed on the importer for improper importation of goods and evasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 of the impugned SCN which is extracted hereinbelow: "16. On perusal of the aforementioned Investigation Report, it is observed that the importer has wrongly classified said goods by suppressing the fact that the said goods are complete mobile set in CKD condition. It was because of the timely intervention of the investigation agency the said fact came to light which proves that the importer had intentionally suppressed the facts and evaded applicable customs duty which resulted in short payment of duty of Rs, 1,11,21,12,551/-, as detailed in Annexure - A to D, and the same is recoverable under Section 28(4) of the Customs Act, 1962 along with interest under Section 28AA of the act ibid. 16.1 The importer by their aforesaid act of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry." 9. As would be manifest from the report of the Expert, the parts imported constituted an incomplete mobile handset. It also noted that various other steps would be required to be completed including addition of essential components before the imported article could function as a mobile phone. We also bear in mind the stand of the petitioner which had consistently taken the position that it was importing parts of mobile handsets. Presently, the respondents have failed to draw our attention to any material which may prima facie sustain an allegation of suppression or misdeclaration so as to justify invocation of Section 28(4). The matter requires consideration. 10. Till the next date of listing, the respondents shall stand restrai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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