delhi high court

Delhi High Court: Four petitions were filed challenging various show cause notices issued under Section 28(4) of the Customs Act, 1962 primarily on the ground that since the period for completion of proceedings as prescribed in Section 28(9) of Customs Act has expired, the authorities would retain no jurisdiction to adjudicate upon the same. Yashwant Varma, J., sets aside the show cause notices and held that the proceedings initiated against the present petitioners cannot be said to be covered under the directives of the Board as they do not fall within the ambit of Section 28(9A)(c) of Customs Act.

A show cause notice was issued against the petitioner in respect of five Bills of Entries in the backdrop of an investigation that was initiated by the Directorate General of Intelligence [DRI] and based on inputs that had been received by it. Upon the issuance of the SCN, the petitioner discloses that the Assistant Commissioner of Customs apprised them that the competent authority had accorded due approval to keep adjudication proceedings pertaining to the said notice in abeyance and till further orders considering the provisions made in Section 28(9A)(c) of the Act. The petitioner was also informed that the decision is pending subject to the Central Board of Indirect Taxes and Customs deliberating upon the judgment of the Supreme Court in Canon India Private Limited v. Commissioner of Customs, 2021 SCC OnLine SC 200, to which the petitioner stated that the case does not cast a cloud on a proper officer of Customs exercising powers under Section 28(4) of the Act, however, the inaction continued.

Counsel for the respondent submitted that based on two communications of the Board dated 17-03-2021 and 16-04-2021, they believed that the aforenoted two communications would clearly fall within the ambit of Section 28(9A)(c) and it was in that background that the SCN proceedings were not finalized.

The Court noted that on perusal of the first directive of the Board, it was essentially dealing with cases where SCNs' may have been issued by officers of the DRI proceeding on the assumption that they were authorized so to do by virtue of Section 28 of the Act. It was this class of SCNs' that came to be impacted by the judgment of the Supreme Court in Canon India (supra) and which had held that an officer attached to the DRI would not be liable to be understood to be a “proper officer” for the purposes of initiation of proceedings under Section 28. In the second communication dated 16-04-2021, the Board apprised the concerned authorities that the entire gamut of issues that arose out of the judgment in Canon India had been duly examined and it had been decided that in all cases where the DRI may have issued the original SCNs', as a matter of abundant caution, SCNs' may be issued by the concerned Deputy Commissioners/Assistant Commissioners of the concerned port of import. It was further observed that further action in respect of the SCNs' would be governed by its instructions dated 17 March 2021.

The Court further noted that the SCN which came to be issued against Gautam Spinners is dated 05-08-2021 and thus evidently post the issuance of two directives of the Board. The SCN against Gautam Spinners had been issued in purported exercise of powers conferred by Section 28(4) and which enables the Customs authority to initiate proceedings where duty has either not been levied, not paid, short levied, short paid or erroneously refunded on account of collusion, wilful misstatement or suppression of facts by the importer or the exporter.

The Court observed that Section 28 provides a window of five years from the relevant date within which proceedings under the said provision may be initiated. The proceedings so initiated are liable to be ended in accordance with the statutory timelines which stand out in sub-section (9). In terms of sub-section (9) and since the notice had been issued with reference to Section 28(4), the proceedings were liable to be ended within one year from the date of the notice and in the facts of the present case, the same being computed from 05-08-2021. The statutory amendment as introduced in terms of the aforenoted Act 13 of 2018 thus clearly lends credence that the period of one year as prescribed in clause (b) was legislatively conferred a mandatory flavour. Section 28(9A) (c) of Customs Act speaks of SCN proceedings being kept pending considering directions that may be issued by the Board. It significantly employs the phrases “similar matter”, “specific direction” and “such matter”.

The Court concluded that the SCNs' which stand impugned in these petitions had been issued post the promulgation of those directives by the Board and admittedly by the competent jurisdictional Commissionerate. The judgment in Canon India (supra) did not place a cloud on the authority and jurisdiction of Customs authorities to initiate proceedings under Section 28(4) or take those proceedings to their logical conclusion. The competent authority of Customs would have been justified in placing the impugned SCN proceedings pending only in a situation where the original SCNs' had been issued by an officer of the DRI.

Thus, the Court held that the proceedings initiated against the present petitioners cannot be said to be covered under the directives of the Board and would also not fall within the ambit of Section 28(9A)(c ) of Customs Act.

[Gautam Spinners v Commissioner of Customs, 2023 SCC OnLine Del 4041, decided on 11-07-2023]

Advocates who appeared in this case :

Mr. Rajesh Rawal and Mr. Naveen Bindal, Advs. for petitioners.

Mr. Harpreet Singh, SC with Ms. Suhani Mathur and Mr. Jatin Gaur, Advs. for respondents

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