Gujarat High Court
M/S Jbs Exports vs Union Of India on 3 April, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025
undefined
Reserved On : 05/12/2024
Pronounced On : 03/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3825 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 3827 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 3833 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 3856 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 3859 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
✓
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M/S JBS EXPORTS & ANR.
Versus
UNION OF INDIA & ANR.
==========================================================
Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No. 1,2
MR CB GUPTA(1685), MR SIDDHARTH DAVE WITH MR CHIRAYU MEHTA
for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
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NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. Harshadray A. Dave for the petitioners, learned advocate Mr. C.B. Gupta, learned Senior Standing Counsel Mr. Siddharth Dave and learned Senior Standing Counsel Mr. Chirayu Mehta for the respondents.
2. Rule returnable forthwith. Learned advocate Mr. C.B. Gupta and learned Senior Standing Counsel Mr. Siddharth Dave and learned Senior Standing Counsel Mr. Chirayu Mehta waives service of notice of rule on behalf of the respondents.
3. By these petitions under Article Page 2 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined 226 of the Constitution of India, the petitioners have challenged the show cause notices issued by respondent no.2 Joint Commissioner, Customs, Mundra, Kutch. The show cause notices were issued in the year 2016.
4. The petitioner is engaged in the business of export of nut, bolts, washer, hand tools etc. falling under Chapter Heading 7318, 8205, 3926 of the Customs Tariff Act, 1975. The petitioner is exporting the said goods to Dubai, UAE.
5. Respondent no.2 based upon the intelligence seized the containers of the petitioner along with other exporters on 20.01.2015 on the ground Page 3 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined that the goods are under weighing and are not properly classified. According to respondent no.2, the goods were required to be classified under Chapter Heading 7308 and not under Chapter heading 7318 and therefore, the same was considered as mis-declared goods.
6. The petitioners preferred Special Civil Application No.7305 of 2015 challenging the condition imposed by respondent no.2 for provisional release of the seized goods which was modified by this Court requiring the petitioner to give bond for value of the goods for provisional release.
7. Respondent no.2 thereafter issued the impugned show cause notices dated Page 4 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined 12.01.2016 in Special Civil Application No.3827/2023, Special Civil Application No.3833/2023 and Special Civil Application No.3859/2023 and show cause notice dated 20.12.2016 in Special Civil Application No.3856/2023 and show cause notice dated 29.11.2016 in Special Civil Application No.3825/2023 on three grounds i.e. mis-declaration of weight, mis-declaration of classification and mis-declaration of value of the goods sought to be exported.
8. The petitioners have therefore, preferred these petitions challenging the show cause notices on the ground that the same are without jurisdiction Page 5 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined as no action was taken by the respondents after issuance of the show cause notices and show cause notices therefore are deemed to have lapsed. SUBMISSIONS FOR THE PETITIONER
9. Learned advocate Mr. Harshadrai Dave submitted that as per the provisions of section 28(1)(a) read with section 28(9)(a) of the Customs Act, 1962 (For short "the Act"), the show cause notice is required to be adjudicated within a period of six months whereas the impugned show cause notices are issued in the year 2016 and the same were pending for adjudication till the petitioners preferred these petitions in the year 2023 and therefore, the respondents cannot Page 6 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined adjudicate upon such show cause notices after a period of seven years.
10. It was submitted that the impugned show cause notices are issued without jurisdiction as the respondent no.2 exercised the powers in excess of the jurisdiction vested in him. It was further submitted that approaching respondent no.2 in compliance of the show cause notice after a period of seven years would not be an efficacious alternative remedy as the action taken by respondent no.2 constitute an abuse of process of law. It was therefore, submitted that in such circumstances, the petitioners have preferred these petitions under Article 226 of the Page 7 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined Constitution of India.
11. Learned advocate Mr. Dave placed reliance upon the following decisions in support of his submissions:
1) State of H.P. and others v.
Gujarat Ambuja Cement Ltd and others reported in AIR 2005 SC 3936.
2) Union of India and anr. v. Vicco Laboratories reported in AIR 2007 SC (Supp) 1225.
3) Dhampur Sugar Mills Ltd. v. State of UP and others reported in (2007) 8 SCC 338.
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4) M/s. Godrej Sara Lee Ltd. v. The Excise and Taxation Officer cum Assession Authority reported in (2023) 384 ELT 8 (SC)
12. It was further submitted that the shipping bills in question were finally assessed, and the petitioners were granted the benefit of duty drawback and the goods in question have already been exported out of India and have reached their respective destination. It was further pointed out that duty drawback for the entire period from 1st January 2011 to 30th September, 2016 was already paid to the petitioners and Bank Realisation Certificates have been issued upon Page 9 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined realization of the consideration in foreign exchange declared in the shipping bills. It was also pointed out that no appeal challenging the final assessment of the shipping bills is preferred by the respondents and appeal period has already lapsed.
13. It was submitted that the impugned show cause notices are liable to be quashed as the same are not adjudicated upon by the authority from 2016 till 2023, more particularly, when the impugned notices are for goods exported by the petitioners from 01.01.2011 to 30.09.2016 and therefore, show cause notices in some cases is composite show cause notice of six Page 10 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined years. It was therefore, submitted that the impugned show cause notices are without jurisdiction as the classification of the goods exported by the petitioners are already adjudicated by final assessment of the shipping bills which has attained finality.
14. Learned advocate Mr. Dave submitted that co-noticee by a detailed reply to the show cause notice has also pressed reliance up on binding precedents with respect to the classification of the goods and despite such replies, respondent no.2 instead of dropping the proceedings has sought the presence of the petitioners for personal hearing which clearly shows mala fide intention Page 11 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined of respondent no.2.
15. Learned advocate Mr. Dave submitted that when this Court directed respondent no.2 to produce the original file concerning the impugned show cause notices, it was revealed that the show cause notices in question were placed under "Call Book" by respondent no.2 which was never intimated to the petitioners. It was pointed out that even respondent no.2 never submitted before this Court that the impugned show cause notices were placed under "Call Book" nor any averment was made in the two affidavits in reply filed by the respondents. It was therefore, submitted that there was breach of Page 12 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined principles of natural justice on failure of the respondent authority in not informing/intimating the petitioner about placing the impugned show cause notices in the Call Book. In support of his submission, reliance was placed on the following decisions:
1) Union of India v. ATA Freight Line(I) Pvt Ltd reported in (2023) 6 Centax 153 (SC).
2) ATA Freight Line(I) Pvt Ltd v. Union of India reported in (2022) 1 Centax 32 (Bom).
3) Commissioner GST and Central Excise v. Shree Baba Exports reported in (2023) 3 Centax Page 13 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined 279(SC).
4) Shree Baba Exports v.
Commissioner, GST & C.Ex.
Chandigarh reported in (2022) 381
ELT 53 (P&H).
5) ICICI Home Finance Company Ltd.
v. Union of India reported in
(2024) 20 Centax 390 (Bom).
16. Learned advocate Mr. Dave referred to and relied upon Rule 16 of the Custom, Central Excise Duties and Service Tax Drawback Rules, 1995 (For short "the Drawback Rules") for the goods exported during the period from 01.01.2011 to 30.09.2016 as respondent no.2 has issued the impugned show cause Page 14 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined notices to demand differential duty drawbacks under the said Rule. It was submitted that though the Rule 16 of the Drawback Rules is silent as to the period during which the show cause notice can be issued by the authority, however, in similar issue, this Court in case of Pratibha Syntex Limited v. Union of India and others (judgment dated 04.07.2022 rendered in Special Civil Application No.2039 of 2004) has held that the period for issuance of show cause notice under Rule 16 would be three years from the date of duty drawback being paid. It was therefore, submitted that the impugned show cause notices and subsequent proceedings initiated by respondent no.2 are beyond Page 15 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined the period of limitation prescribed by this Court. The decision of this Court was followed in various other decisions and the SLP filed against such decision including the review petition preferred by the respondents have been rejected by Hon'ble Supreme Court.
17. Learned advocate Mr. Dave further submitted that as per section 128 of the Customs Act, any person including the department if aggrieved by the final assessment must file an appeal before the stipulated time frame and if no appeal is filed, assessment would attain finality and cannot be reopened. It was submitted that shipping bills relating to the period covered by the Page 16 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined impugned show cause notices are already finally assessed by the Proper Officer and duty drawback was paid based on such assessment and no appeal was filed against the final assessment and period of filing appeal has also lapsed and therefore, in such circumstances, action of respondent no.2 in reopening such final assessment without any challenge in appeal is therefore, beyond the jurisdiction and the impugned show cause notices are required to be quashed and set aside.
18. In support of his submission, reliance was placed on the following decisions:
1) ITC Limited v. Commissioner of Page 17 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined Central Excise, Kolkatta IV reported in (2019) 17 SCC 46.
2) Gargip International v. Union of India (judgment dated 12.06.2017 rendered in Special Civil Application No. 17255 of 2016).
3) M/s. S.J.S. International V. Union of India (judgment dated 9.12.2021 in Special Civil Application No.20484 of 2019)
19. Learned advocate Mr. Dave submitted that respondent no.2 has acted in excess of the powers vested in it due to failure to follow the binding precedent.
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20. Reliance was placed on the decision of Hon'ble Supreme Court in case of Union of India v. Kamlakshi Finance Corporation Ltd reported in 1991 (9) TMI 72(SC), wherein Hon'ble Supreme Court has held as under:
"It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities; The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department -Page 19 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025
NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined in itself an objectionable phrase - and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws."
21. It was therefore, submitted that respondent no.2 has failed to follow the binding precedent of appellate authority, revisional authority and this Court wherein it is already held that classification of such goods sought to be exported by the petitioner and other exporters would be item specific and not as per end use and classification made by the exporters in Chapter Heading No.7318 was held to be proper. It was submitted that despite Page 20 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined such binding decisions, the respondents have continued to issue the show cause notices to reopen the assessment on the ground of classification and as such, the show cause notices are without jurisdiction. Reliance was placed on the following decisions:
1) M/s.S.J.S International (Special Civil Application No.20484 of 2019).
2) Gargip International v. Union of India (Special Civil Application No.17255 of 2016).
3) Vinod Electropating Works(order dated 19th November, 2015 of Appellate Commissioner).Page 21 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025
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4) Vinod Electropating Works, (order dated 1st /3rd February, 2022 of revisional authority).
5) Hind Steels, Additional Commissioner (Export) order dated 20.03.2014.
6) Vinod Electroplating Works, Additional Commissioner (Export) Order dated 20.03.2014.
22. With regard to the allegation of over valuation of the goods exported by the petitioners leveled in the show cause notices, it was submitted that once the value declared in the shipping bills has been realized and Bank Realization Certificates are available, Page 22 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined respondent no.2 could not have made such allegation. Reliance was placed on the decision of Hon'ble Supreme Court in case of Commissioner of Customs, Mumbai v. Vishal Exports Overseas Ltd reported in (2007) 9 SCC 168.
23. It was further submitted that respondent no.2 has failed to apply the circular No.1053/02/2017-CX issued by the Central Board of Indirect Taxes which clearly stipulates that long standing assessment practice cannot be changed merely by issuing show cause notice, but the issue ought to have been referred to the Board for consideration. Reliance was placed on the decision of Hon'ble Apex Court in Page 23 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined case of Paper Products Ltd. v. Commissioner of Central Excise reported in 1999(8) TMI 70(SC) wherein it is held by Hon'ble Supreme Court that the departmental circulars are binding on the revenue authority.
24. Reliance was also placed on the decision of Hon'ble Supreme Court in case of Collector of C.Ex. Vadodara v. Dhiren Chemical Industries reported in 2001 (12) TMI 3 (SC), wherein it is held that there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation and such interpretation will be binding upon the Revenue. It was therefore, submitted Page 24 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined that the respondent authorities have failed to follow the binding precedent and legal norms and therefore, the impugned show cause notices are without jurisdiction and only remedy available to the petitioners is to prefer these petitions under Article 226 of the Constitution of India.
SUBMISSIONS FOR THE RESPONDETS
25. Per contra, learned advocates for the respondents submitted that in these petitions, intelligence was gathered by the Directorate of Revenue Intelligence (DRI), Ahmedabad Zonal Unit that various Jalandhar, Ludhiana and Delhi based exporters were exporting the goods from Mundra port claiming higher duty drawback by way of Page 25 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined misclassification, short shipment and over valuation. It was submitted that "scaffolding items" falling under Customs Tariff Head (CTH) 7308 were wrongly classified under CTH 7318 and 8205 where duty drawback rate was higher and overvaluation was done to claim higher incentives.
26. It was therefore, submitted that after inquiry being initiated against the petitioner and during the investigation the goods were seized on reasonable belief that the same were liable for confiscation. It was submitted that merely because the goods were provisionally released, it cannot be said that show cause notices cannot Page 26 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined be issued if during the investigation it is revealed that there is short shipment, mis-classification and over valuation of exported goods. It was therefore, submitted that the impugned show cause notices are issued for recovery of fraudulently availed excess duty drawback by the petitioners under Rule 16 of the Drawback Rules read with section 75 of the Customs Act. It was submitted that though relied upon documents and evidence have been provided to the petitioners to represent their case before the adjudicating authority, the petitioners have not complied with the impugned show cause notices.
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27. It was submitted that as per Circular No.24/2011 dated 31.05.2011 issued by the Central Board of Excise and Customs at the relevant time, Proper Officer can issue the show cause notice in cases involving collusion, willful misstatement or suppression of facts without any time limit and therefore, the impugned show cause notices issued by respondent no.2 being a proper officer cannot be said to be barred by limitation.
28. It was submitted that though respondent no.2 has given opportunity of personal hearing to the petitioners no one appeared for personal hearing and in view of stay grated by this Page 28 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined Court vide order dated 27.03.2023, respondent no.2 could not proceed with adjudication as the matter is pending before this Court. It was therefore, submitted that respondent no.2 may be permitted to complete the adjudication and if the petitioners are aggrieved by the outcome of the show cause notices, alternative efficacious remedy by preferring an appeal is also available in which the petitioners may raise all the issues which are raised in these petitions. It was also submitted that the petitioners are entitled to raise all the issues during adjudication of show cause notices.
29. Learned advocate for the Page 29 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined respondents referred to the provision of section 75 of the Customs Act, 1962 which provides for duty drawback on imported materials used in the manufacture of goods which are exported. It was submitted that Rule 16 of the Drawback Rules empowers respondent no.2 for recovery of erroneous or excess payment of drawback and interest and merely because the shipping bills are self-assessed, it cannot be said that the same are finally assessed and respondent no.2 can take recourse to Rule 16 where it is found on verification, examination or testing of the goods or otherwise that self-assessment is not done correctly and reassessment of the duty Page 30 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined leviable on such goods is permissible.
30. It was therefore, submitted that in facts of the case when DRI has found during the investigation that the petitioners were making exports claiming higher duty drawback by way of misclassification, short shipment and over valuation by describing the exported goods with generic description as "Nuts and Bolts", "Plastic Caps", "Washers", "Clamps" etc. by classifying under CTH Tariff Item No. 7318 , 3923, 3926, 8205 etc. but during the investigation, such goods were found to be parts of equipment for scaffolding used for construction work. It was submitted that as per the report Page 31 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined of the Chartered Engineer, it was found that after investigation of the samples of the goods that these were parts of scaffolding items, and such fact is accepted by the partner of the petitioners in statement recorded by the officer of DRI.
31. It was therefore, submitted that the issues raised by the petitioners can also be considered by the adjudicating authority during adjudication process.
32. In support of his submission, reliance was placed on the decision of Calcutta High Court in case of M M Exports v. Zonal Director General of Foreign Trade reported in 2001 (133) Page 32 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined ELT 558 (Cal.) wherein it is held that officer of the Customs Department is competent authority for assessment and reassessment of the value of goods. It was therefore, prayed that no interference may be made in these petitions and respondent no.2 may be permitted to adjudicate the show cause notices in accordance with law. It was further submitted that reliance placed by the petitioners on various decisions are based upon the facts which are different and present case cannot be compared with other consignments not covered by investigation by DRI as show cause notices in the present case have been issued after following findings of the investigation. It was therefore, Page 33 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined submitted that no period of limitation would apply in view of Rule 16 of the Drawback Rules and the petitioners may be subjected to the adjudication process before respondent no.2 in respect of show cause notices. DISCUSSION AND FINDINGS:
33. Having heard the learned advocates for the respective parties and considering the facts of the case, following undisputed facts emerge from the materials placed on record.
(i) On the basis of intelligence gathered by DRI, searches were carried out at the office premises of M/s. D.K. Logistics, Gandhidham and office premises of M/s. Mak Page 34 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined Container Line, Jalandhar and inquiry was also initiated against the petitioners and examination of export goods covered under various shipping bills was also undertaken.
(ii) After search and investigation and on examination of imported goods, it was found that same were mis-declared in terms of quantity and classification and therefore, the same were seized by seizure memo dated 20.1.2015 by DRI.
(iii) Thereafter, respondent no.2 on receipt of No Objection Letter dated 27.01.2015 from DRI for provisional release of the seized Page 35 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined good, permitted the same to be provisionally released on execution of bond of 100% FOB value of goods along with 25% security in form of bank guarantee.
(iv) However, the petitioner approached CESTAT Ahmedabad who vide order dated 1.05.2015 ordered for release of goods on furnishing bond of 100% of value. Accordingly, goods were released by the customs authority.
(v) Thereafter impugned show cause notices were issued by respondent no.2 based upon the statements recorded during the course of Page 36 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined investigation by DRI and report submitted by Chartered Engineer after examination of samples drawn under Panchnama dated 11.02.2015 by DRI calling upon the petitioners as to why duty drawback sanctioned should not be recovered as the goods in question were misclassified under CTH 7318 instead of CTH 7308 and for under valuation and under weighment of the exported goods.
(vi) After issuance of the show cause notices, it appears that same were kept in "Call Book" which fact is found out from the original file placed before this Court produced Page 37 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined during the course of hearing on 5.12.2024.
34. In view of above facts, the main ground of challenge of the petitioners to the impugned show cause notices, is that the show cause notices are without jurisdiction as the same are not adjudicated for more than seven years and approaching respondent no.2 for adjudication of the show cause notices would not be an efficacious remedy for the petitioners as respondent no.2 has no jurisdiction to issue the show cause notices in the facts of the case, more particularly, when such show cause notices are time barred and respondent no.2 has failed to take into Page 38 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined consideration the binding precedent.
35. This Court in case of M/s. SJS International (supra) in similar facts after considering similar contentions raised by the petitioners and the respondents in the said case, examined Rule 16 of the Drawback Rules as under:
"7.4 Apt would be to refer to Rule 16 of the Drawback Rules, at this stage, which speaks of repayment of erroneous or excess payment of drawback and interest.
"Rule 16. Repayment of erroneous or excess payment of drawback and interest. -
Where an amount of drawback and interest, if any, has been paid erroneously or the amount so paid is in excess of what the claimant is entitled to, the claimant shall, on demand by a proper officer of Customs repay the amount so paid erroneously or in excess, as the case may be, and where the claimant fails Page 39 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined to repay the amount it shall be recovered in the manner laid down in sub-section (1) of section 142 of the Customs Act, 1962."
7.5 It is quite clear from the said Rule that any amount of drawback and interest when paid erroneously or is paid in excess of the entitlement of the claimant, on demand by a proper officer of the Customs, the claimant is required to repay the amount paid erroneously or in excess. Rule 16 of the Drawback Rules provides for recovery of an amount of drawback and interest paid erroneously or in excess of what the claimant is entitled to, on demand by a proper officer of the customs the same shall need to be repaid. And, where he fails to repay the amount, it is permitted to be recovered in the manner provided under Sub-section (1) of Section 142 of the Act. It is quite clear from Rule 16 of the Drawback Rules that what all it provides for is the recovery of excess drawback paid erroneously, but choses not to prescribe the time limit. The question which has come up for consideration as to whether in absence of any period of limitation provided under Rule 16 of the Drawback Rules, any Page 40 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined reasonable time period could be read into the said Rule. It also provides for statutory mechanism of recovery under Section 142 of the Act."
36. This Court applying the decision in case of SCA No. 2039 of 2004 and allied matters held as under:
"9.2 The matter came up before this Court, where it firstly directed the review before the Revisional Authority and thereafter once again, when the petitioner approached before this Court, the Court held thus:
xxxx 9.3 This decision has also been followed in case of PADMINI EXPORTS & 1 vs UNION OF INDIA & 2 in Special Civil Application No.17812 of 2003.
9.4 It is apt to note that these are binding precedents from 2012. The authority concerned ought to have followed the same when the same have attained finality.
9.5 In Special Civil Application No.14917 of 2013 to 14921 of 2013 this Court (Coram: Justice M.R.Shah, as His Page 41 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined Lordship then was & Justice Sonia Gokani) in case of E I DUPONT INDIA PRIVATE LIMITED & 1 vs UNION OF INDIA & 3 had noticed the case of Commissioner of Central Excise and Customs vs. NBM Industries, reported in 2013(29) STR (208) Gujarat wherein it had been held that on inputs used in manufacturing of goods cleared by DTA units to 100% Export Oriented Unit (EOU), refund of CENVAT credit is available and the same cannot be denied on the ground that the case was of deemed export. It was insisted that the refund would be granted only in case of physical export. This Court disapproved non following of a binding decision and despite the direction of this Court, the respondent had rejected the refund claims of the claimant on the ground that the decision of NBM Industries (supra) is the case of another assessee and not in the case of claimant and each one must fight its own battle and must succeed or fail in such proceedings.
It also had relied on the decision of the Madras High Court reported in 2007(211) ELT 23 (Madras) which was against the assessee.
9.6 This Court taking note of various decisions had directed that the action of the rejection of refund claim cannot be sustained and deserve to be quashed and set aside. While parting, the Court in very strong words disapproved the arbitrary act on the Page 42 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined part of the lower adjudicating authority and in ignoring the binding precedents. Apt would be to refer to those words:
"[6.0] In view of the above and for the reasons stated above and the decision of this Court in the case of NBM Industries (Supra), the impugned orders passed by the respondent No.4 rejecting the refund claims of the petitioner cannot be sustained and they deserve to be quashed and set aside and are accordingly quashed and set aside and the respondents - adjudicating authorities are hereby directed to sanction the respective refund claims of the claimant after following the law laid down by this Court in the case of NBM Industries (Supra) and pass fresh orders within a period of two months from the date of the receipt of the present order and to make the actual payment within a period of four weeks thereafter and also grant consequential reliefs which may be available to the petitioners under the relevant provision of the rules more particularly Rule 5 of the Rules.
[6.1] Before parting with the present order, we are constrained to strongly disapprove such arbitrary act on the part of the lower adjudicating authority and/or Page 43 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined lower authorities in ignoring the binding decisions/orders passed by the higher appellate authorities/courts. Time and again the Hon'ble Supreme Court as well as various High Courts and this Court have disapproved such conduct/act on the part of the lower authorities in ignoring the binding decisions/orders passed by the higher appellate authorities/courts. Still it appears that message has not reached the concerned authorities. In the recent decision in the case of Claris Lifesciences Ltd. (Supra) in para 26 this Court has observed as under:
"26. Despite such clear and specific directions and authoritative pronouncements, act of issuance of show cause notice by the Deputy Commissioner is wholly impermissible and unpalatable and deserves to be quashed and struck down with a specific note of strong disapproval. The respondents simply could not have exercised the powers contained under the statute in such arbitrary exercise and in complete disregard to the pronouncement of this Court particularly reminding the Revenue authorities of the binding effect of decision of Page 44 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined Tribunal on the identical question of law. This not only led to multiplicity of proceedings but also speaks of disregard to the direction of this Court rendered in the earlier petition of this very petitioner. Resultantly, petition stands allowed. Both the show cause notices dated 21.8.2012 and 22.1.2013 are quashed and struck down."
It appears that still the message has not reached the concerned authorities in following the binding decisions of the higher appellate authorities and/or courts solely on the ground that the same is in the case of another assessee. Such a conduct is also required to be viewed from another angle. This would not only amount to disregarding the direction of the court rendered in earlier petitions but would also lead to multiplicity of proceedings. When the courts are overburdened and are accused of arrears, it is the duty of the concerned authorities to avoid multiplicity of proceedings and lessen the burden of the courts.
Being a part of the justice delivery system. All efforts should be made by the authorities/quasi judicial authorities and judicial authorities to see that there is no Page 45 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined multiplicity of proceedings and to pass the orders considering the binding decisions. It would also avoid unnecessary harassment to the parties as well as the unnecessary expenditure.
[6.2] As observed hereinabove despite clear and unequivocal message by the pronouncement of the decisions by the Hon'ble Supreme Court as well as this Court, the message has not reached to the concerned authorities, we direct respondent No.2 - Central Board Excise and Customs, New Delhi to issue a detailed circular to all the adjudicating authorities considering the observations made by this Court in the present judgment and order as well as the law laid down by the Hon'ble Supreme Court in various decisions referred to in the present judgment and order, within a period of 30 days from the date of receipt of the present order so that such eventuality may not happen again and again."
10. In the instant case, the grievance on the part of the petitioners is that the Order-in-Original does not recognize the issue of limitation although the same being the settled law. Here the petitioners have exported the articles from Mundra Port Page 46 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined and had claimed that drawback and benefit under the Focus Product Scheme (FPS). The allegation has been that it had indulged in misuse of drawback scheme and FPS and other exports incentives by way of making export of scaffolding items falling under CTH No.7308 by placing under CTH Nos.731816000, 39235010, 39269099 and 82057000 with the allegation of export of less quantity of goods than what was declared and over valuing of the export products. After the proper officer had allowed the export to be made, the DRI has initiated the action.
11. Admittedly, the export of goods covered under shipping Bill Nos.6982047 and 6982039 both dated 01.01.2015 and export goods covered under shipping Bill Nos.6998694 and 6997757 both dated 02.01.2015 had been seized carrying out the panchnama dated 08.01.2015. The DRI had allegedly noticed the shortage of 3205 Kg and 2990 Kg than what had been declared in the shipping bills. The goods were detained pending the inquiry and were handed over for safe custody. After the seizure of the goods as per Section 110 of the Customs Act, the DRI, Ahmedabad wrote a letter to the Joint/Additional Commissioner of Customs for giving 'No Objection' for provisional release of seized goods.
Page 47 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025
NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined 11.1 On execution of bond of 100% FOB value of goods along with 25% security in the form of Bank Guarantee, the same had been permitted.
11.2 The petitioners had challenged this provisional release by approaching the CESTAT, which vide order dated 01.05.2015 released the seized goods on furnishing the bond of 100% value and accordingly, goods were provisionally released for the exports by the custom authority.
12. This Court notices the detailed Order-in-Original adjudicating the SCN against which there is already a channel of appeal provided and thereafter, if the party is still aggrieved, the revisional authority can also be approached by the litigating party. However, here previously SCN of dated 12.01.2016 in relation to the seized goods was already issued and yet, another SCN is issued, the revenue has not challenged what has been held favoring the petitioner and the petitioner has challenged it on the ground of breach of principles of natural justice as well as on substantive issues.
13. The petitioner has approached this Court as the actions have been taken of issuance of the SCN in relation to the search made on 10.01.2015, the SCN has been issued on 09.02.2018. It is Page 48 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined thus clear that for the export which had been made in the years 2011 to 2015 and for the shipping Bills of 01.01.2015 for which the duty drawback had been given to the petitioner in the year 2016, this action has been initiated before expiry of a period of three years so far as some bills are concerned. As held by this Court in case of PRATIBHA SYNTEX LIMITED vs. UNION OF INDIA & OTHERS, Rule 16 of the Drawback Rules though does not provide for the period of limitation, the reasonable period of limitation has to be read into the same and the SCN issued before expiry of a period of three years from the date of payment of the drawback to the petitioner cannot provide a reason for the Court to hold that the same as time barred.
14. The petitioners have shown the procedure for export of goods. It is a detailed procedure to urge that the petitioners have exported the goods following the procedure upon the export permitted by the proper officer and the final shipping bills being generated, the petitioners were entitled to duty drawback as the shipping bills were filed through EDI system. Under the EDI system, once the final shipping bill is generated, the same becomes the final claim for the duty drawback according to the petitioner and the same needs to be paid within three working days as per Page 49 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined the Circular No.25 of 2000 of the department.
15. We note that the show cause notice is issued by the authority for the shipping bills from the years 2011 to 2015. The list of shipping bills has been given & barring a very few shipping bills which have been submitted here duty drawback has been paid to the petitioner for numerous shipping bills from 2011 to 2014 long before and therefore, any show cause notice issued after a period of three years from the date when drawback came to be paid, cannot be sustained. This is also one serious breach deserving indulgence. In relation to most of the shipping bills, duty drawbacks have been paid where this decision would come to the rescue of the petitioner. And, where completion of 3 years is not happening for those payments of duty drawbacks made in the year 2016 there appears to be no breach of required time period. Assuming that for the some of the shipping bills for which the show cause notice has been issued, the decision of this Court for limitation will apply as the payment is of 2016 and the SCN is of 2018, period prescribed for payment is three days on presentation and delay on the part of the respondent also cannot take away the right of party.
16. As held above in case of those shipping bills as the show cause Page 50 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined notice essentially cannot be issued beyond the period of three years of payment of the duty drawback, and that being a settled legal position, if not regarded, this Court needs to interfere. Again, the proper officer who assesses the shipping bills will be in a position to reopen the same provided that there is such a stage of reopening the shipping bill filed once are self assessed, that would attain finality upon the proper officer clearing the same. Had there been any discrepancy, the proper officer would not consider the self assessment final and would obviously assess the shipping bill before finalizing.
17. In the instant case, the shipping bills had been finally assessed and the assessment had attained finality. The aggrieved party having any issue on the classification would need to approach the appellate authority instead of reopening the assessment by issuing the show cause notice. The appeal appears to have become time barred as averred by the petitioners, the show cause notice is on account of the misclassification.
18. However, the Court needs to regard that the core issue raised in SCN is of classification which is concluded, and no challenge is made by the revenue. It has also questioned this after the export is already made and, even when the statutory provision Page 51 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined permits the same, settled legal position would preclude such challenge when made beyond a specific time period. Additional reason is of the time stipulated for clearing the shipping bill which is of three days (3) and any late clearance also cannot furnish the reason to permit issuance of the SCN calculating from the date of payment of duty drawback. Even if, this angle is not dilated and left to the parties to argue before the concerned authority, at the best, for those bills where payment of duty drawback is within 3 years of the issuance of SCN, the adjudication can be permitted. This has not been at all considered in the order in original. Again, with no challenge having been made by the department to the decision of the proper officer where many of the aspects of the petitioners have been accepted and with non consideration of the decision of this Court as discussed at length, interference would be necessary.
19. The initiation of the action on the part of the DRI on an intelligence of is severally questioned when the proper officer has already held in favour of the assessee classifying the item of export under a different head. Reliance is placed also upon the case of M/S.CANNON INDIA PRIVATE LIMITED V/S. COMMISSIONER OF CUSTOMS, reported in 2021 AIR 1699 to urge that the DRI has no powers to initiate action Page 52 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined against the petitioner. This surely is an additional and potent ground for the Court to regard the binding decision of the Apex Court and hold in favour of the petitioner. 19.1 Even without touching the ratio laid down in case of M/s.Cannon India Private Limited (supra) as this decision came recently, on non consideration of the ground of limitation also, interference is desirable.
20. Resultantly, this petition is allowed partly. The action of the respondent authority of issuance of the SCN dated 09.02.2018 is interfered with. The SCN in the present form is quashed and set aside with all consequential actions with a clarification that for the shipping bills not covered by the decision of PRATIBHA SYNTEX LIMITED (supra), the authority shall be permitted to proceed if allowed otherwise under the law."
37. We are therefore of the opinion that the decision in case of M/s. SJS International of this Court in similar Page 53 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined facts would be squarely applicable to the facts of the present case also.
38. However, in the facts of the present case, there is one additional factor that impugned show cause notices were kept in "call book" which was never informed to the petitioner and the show cause notices were not adjudicated for seven years and hence even if the show cause notices are issued within three years from date of shipping bill, the same would not be saved in view of inordinate delay for not adjudicating the same. Therefore, these petitions are allowed and the impugned show cause notices with all consequential actions are quashed and Page 54 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025 NEUTRAL CITATION C/SCA/3825/2023 CAV JUDGMENT DATED: 03/04/2025 undefined set aside. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) (D.N.RAY,J) RAGHUNATH R NAIR Page 55 of 55 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu Apr 03 2025 Downloaded on : Thu Apr 03 22:20:20 IST 2025