Customs, Excise and Gold Tribunal - Mumbai
M.C.J. And Co. vs Commissioner Of Customs on 27 October, 2000
Equivalent citations: 2000(72)ECC835
ORDER J.H. Joglekar, Member (T)
1. On hearing Shri Uday Joshi, Advocate for the applicants and Shri B.K. Choubey, JDR for the Revenue, the application was allowed and the appeal was taken up for immediate disposal.
2. The appellants imported gum, damarbatu (Sarjarsam). The invoice given Bs/E under which same goods were cleared at other Ports in support of their valuation. The Assessing Authority, however, enhanced the value to US $ 700 PMT. On the B/E only this noting was done. The same noting i.e. "value enhanced to US $ 700 PMT" was made on the face of the invoice on 15.10.98. The assessee contested this and sought re-assessment. On 14.10.98 i.e. prior to the endorsement, they had requested for personal hearing waiving the issuance of show cause notice. They wrote a letter to the Chief Commissioner on 29.12.98 complaing about the delay in processing of the case. Reminders were sent. The last reminder was sent on 2.4.99. There was no response. Finally, the importers filed a writ petition on 16.4.99. The Hon'ble High Court of Gujarat dismissed their writ petition holding that alternative and equally efficacious statutory remedy was available. On 21.10.99, an appeal was filed before the Commissioner (Appeals). The Commissioner held that counting from the date of assessment i.e. 17.4.98 to the date of filing of the appeal before him, the period of 15 months had elapsed and the delay was beyond his statutory power of condonation. His having dismissed the appeal on limitation, the present appeal is before us.
3. Shri Uday Joshi relies upon the Allahabad High Court judgment in the case of Eureka Forbes Ltd. In this case, the Hon'ble High Court have ruled that the limitation provided by the Indian Limitation Act would supersede the limitation prescribed under a special Act. We do not think it necessary to examine the ratio of the judgment nor is it necessary to apply the same to the present proceedings.
4. We observe that there is no order in assessment in the proceedings. Section 17 of the Customs Act and the Rules framed thereunder required acceptance of the transaction value as in the invoice. Where the transaction value is not acceptable, the law requires that a specific statement be made to that effect by the assessing officer. The Rules provide a series of alternatives to the assessing officer for determination of the valuation of the imported goods. The law requires that adequate opportunity be given to the assessee to state their case. The Asstt. Commissioner has violated the principles of natural justice.
5. This situation could have been remedied by the Commissioner (Appeals) but then being the creature of the statute, he was bound by the dictate of the law.
6. We find that the act of enhancement of the value by the Asstt. Commissioner was arbitrary and in utter violation of principles of natural justice. We direct the Asstt. Commissioner of Customs to issue a speaking order in assessment after taking into account the documentation presented by the importers and after allowing the importers to make their statements before him. The appeal is allowed by way of remand.
ORDER G.N. Srinivasan, Member (J) I whole heartedly agree with the order dictated by my Id. brother.
The Assessing Authority viz. the Customs authority whenever they want to enhance a value than what is permitted them, they cannot do it without issuing show cause notice. Whenever, there is a short levy, the Customs Authority can collect the same only in terms of Section 28 of the Customs Act. The said Section when compared it with Section 124 of the Customs Act would reveal that in the latter section there is a reference to the waiver of written show cause notice in respect of levy of penalty. But when we see the provisions of Section 28 of the Customs Act, there is no such waiver indicated in the said Section. Here no action was proposed by the Customs Authority in terms of the endorsement of the value in the B/E to show that they were proposing to claim more money i.e. enhanced value is demanded by the department from the importer that will amount to the situation which is prejudicial to the interest of the importer. In that event the only conclusion a person can come to is that principles of natural justice should be compiled with. If any action is proposed by the department in enhancing the value, then they ought to have undertaken the actions enshrined in Section 28 of the Customs Act. In fact, Clause (2) of Section 28 states that the proper officer only after considering any representation, if any, to take further action which means notice to enhance is a legal necessity. In this case, evidence does not disclose any action has been taken by the authority in terms of Section 28(2) of the Customs Act. The action taken by the Assessing authority is clearly wrong in law. It must be noted that if any action is taken against any individual without following the principles of audi alteram partem then the resultant order will show that individual was injured by the action. He will always feel that a greater injustice has been done in his case. I only hope that the Customs authorities who are administering the Customs Act for more than 10 or 15 decades will refrain from taking any such action in future. With this observation, I also agree with my Id. brother in allowing the appeal and remanding the matter back to the original assessing authority.