Skip to main content

Legal proceedings cannot be initiated without completing assessment proceedings

In Roochees Time Pvt. Ltd. and Ors. Vs. C.C.E., Jaipur-I, the Customs, Excise and Service Tax Appellate Tribunal held that legal proceedings cannot be initiated without completing assessment proceedings

In facts of present case, Appellant imported P-68 watch movement from Hong Kang and filed Bills of Entry. On basis of invoice issued by overseas supplier, Appellant had indicated per unit value of imported goods (US $ 0.08 i.e. Rs. 3.66) for purpose of assessment of duty liability. Customs Department prima-facie formed opinion that, goods were undervalued by Appellant, and accordingly, subject goods were detained under Section 110 of Customs Act, 1962. Goods were assessed provisionally. Subsequently, Department further enquired into matter through DRI and Consulate General of India at Hong Kong. On basis of report received from various agencies, show caasseuse proceedings were initiated against Appellants, seeking for enhancement of value, payment of differential Customs duty and for imposition of penalties. SCN was adjudicated vide order, wherein proposals made therein were confirmed. On appeal, adjudged demands were upheld by Commissioner (Appeals). Short question involved in present appeal for consideration by Tribunal is, as to whether, before finalization of Bill of Entry, which was provisionally assessed under Section 18 of Act, can Department proceed against importer to confirm differential duty demand and for imposition of penalty.

Tribunal found from endorsement in Bill of Entry that, same was provisionally assessed as per order dated 21st December, 2006. It has also been accepted in show cause notice as well as in impugned order that, goods were assessed provisionally on execution of Surety Bond and on payment of Customs Duty on provisionally assessed value of imported goods. Authorities below have not confirmed fact that, after finalization of Bill of Entry, demands were confirmed against Appellant. Thus, in absence of any documentary evidence to show finalization of Bill of Entry, it has to be construed that, same is still provisional, awaiting finalization.

Section 28 of Act, contemplates issuance of show cause notice for recovery of duties which were not levied or short levied. For issuance of show cause notice under such statutory provision, duty liability is required to be ascertained by proper officer. In present case, since assessment is provisional and proper duty liability has not been quantified/ascertained as per provisions of Section 18 of Act, there is no question of short levy or non-levy of duty. Thus, proceedings initiated under Section 28, which culminated in impugned order will not sustainable and will not stand for judicial scrutiny.

In this context, Supreme Court in case of ITC Ltd. and Anr. vs. Union of India (UOI)held that, proceedings under Section 11 A of Central Excise Act, 1944 (pari materia with Section 28) cannot be initiated without completing assessment proceedings. Since, present proceedings were initiated under Section 28 of Act, before finalization of assessment, same is not maintainable at this juncture. However, Department is at liberty to take appropriate measures after finalization of Bill of Entry in question. Impugned order was set aside, appeals allowed.

Comments

Most viewed this month

Appellate authorities under Special Statutes cannot be asked to condone delay

Madras High Court in R.Gowrishankar vs. The Commissioner of Service Tax has held that Appellate authorities cannot be asked to condone the delay, beyond the extended period of limitation A Division Bench comprising of Justices S. Manikumar and D. Krishnakumar, made this observation while considering an appeal filed against Single Bench order declining to set aside the order made in the condone delay petition filed by the petitioner to condone 223 days in filing the appeal before the Commissioner of Service Tax (Appeals). Article referred: http://www.livelaw.in/appellate-authorities-special-statutes-cannot-asked-condone-delay-beyond-extended-period-limitation-madras-hc/

'Seize assets to pay damages to accident victim'

Her story might be an inspiration for the physically challenged but justice has remained elusive for her. In 2008, a bus accident left research engineer S Thenmozhi, 30, paraplegic. In April 2013, the motor accident claims tribunal directed the Tamil Nadu State Transport Corporation (TNSTC) to provide her a compensation of 57.9 lakh. However, TNSTC refused to budge and on Tuesday a city court ordered attaching of movable assets of the transport corporation. Thenmozhi was employed in C-DOT, a telecom technology development centre in Bangalore. On July 21, 2008, she was coming to Chennai in a private bus. Around 2am, the bus had a flat tyre and the driver parked it on the left side of the road near Pallikonda in Vellore district on the Bangalore-Chennai highway. While the tyre was being changed, a TNSTC bus of Dharmapuri division hit the stationary bus. The rear part of the bus was smashed and passengers were injured. Thenmozhi who had a seat at the back of the bus suffered...

Mumbai ITAT rules income of offshore discretionary trust is subject to tax in India

The Mumbai Income Tax Appellate Tribunal (ITAT) has recently determined the following issue in the affirmative in the case of Manoj Dhupelia: Should the income of an offshore discretionary trust be subject to tax in India, if no distributions have been made to beneficiaries in India? The question arose from appeals filed by individual beneficiaries in relation to a Lichtenstein-based trust, the Ambrunova Trust and Merlyn Management SA (the Trust) with the ITAT. It is important to note that the individuals in this case were amongst those first identified by the Government of India (GOI) as holding undeclared bank accounts in Lichtenstein. The ITAT ruling raises the following issues: Taxation of Trust Corpus: ITAT classified the corpus of the trust as "undisclosed income" and declared it taxable in the hands of the beneficiaries. Taxation of Undistributed Income: ITAT refused to draw a distinction between the corpus and undistributed income from the trust and declared i...