Bharat Luxindo Agrifeeds Pvt Ltd Vs Additional Commissioner of Customs (Madras High Court)
Summary: The Madras High Court, in Bharat Luxindo Agrifeeds Pvt Ltd Vs Additional Commissioner of Customs, allowed a writ petition challenging an order-in-original dated 13 February 2025 raising a differential customs IGST demand of Rs.5,14,380/- with applicable interest on imported rice bran. The petitioner had imported rice bran from Indonesia under a Bill of Entry dated 24 September 2020, declaring the goods under CTH 23024000 and claiming Nil IGST under Serial No.102 of Notification No.02/2017-Integrated Tax (Rate). Subsequently, the Customs Department audited the Bill of Entry and concluded that the goods attracted IGST at 5% under Serial No.103B of Schedule I to Notification No.01/2017-Integrated Tax (Rate). The Department invoked the extended limitation period under Section 28(4) of the Customs Act, 1962, alleging wilful misclassification and wrongful availment of the notification benefit. The petitioner contended that the description, classification and exemption claim had been fully disclosed in the Bill of Entry, which the proper officer accepted. It also submitted that Rs.2,43,449/- towards differential duty and Rs.83,520/- towards interest had already been paid on 30 December 2023.
The principal question before the High Court was whether the statutory requirements for invoking the extended limitation period under Section 28(4) had been satisfied. The Court distinguished Section 28(1), which ordinarily prescribes a two-year notice period for short-payment or non-payment of duty without fraud-related circumstances, from Section 28(4), which permits a five-year period where the short-payment results from collusion, wilful misstatement or suppression of facts. It held that a subsequent disagreement over tariff classification or eligibility for an exemption notification does not automatically establish wilful misstatement or suppression. The importer had disclosed the goods as rice bran, specified the tariff classification and expressly claimed the notification benefit. The Department produced no material demonstrating concealment, deliberate false declaration or intentional suppression of material facts. The Court emphasised that merely describing an act as a “wilful misstatement” in a show cause notice or adjudication order cannot satisfy the jurisdictional conditions of Section 28(4).
The High Court also rejected the Department’s objection that the petitioner should pursue the statutory appellate remedy under Section 128 of the Customs Act. Although an alternative remedy ordinarily weighs against the exercise of writ jurisdiction under Article 226, it does not constitute an absolute bar where the statutory conditions for assuming jurisdiction are absent. Since the extended limitation provision had been invoked without the necessary factual foundation, the Court held that relegating the petitioner to an appeal was unwarranted. Accordingly, the writ petition was allowed and the order-in-original dated 13 February 2025 was set aside. The Court expressly declined to determine the correct classification of the imported goods, the applicable IGST rate or the legality of the remaining differential duty demand. It clarified that the Customs Department remained free to initiate any action otherwise permissible under Section 28, subject to limitation and other statutory requirements. The connected miscellaneous petitions were closed without costs.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
The petitioner challenges the order-in-original dated 13.02.2025 passed by the respondent under Section 28(4) of the Customs Act, 1962 (hereinafter referred to as “the Act”), whereby the petitioner’s claim for levy of IGST at Nil rate under Serial No.102 of Notification No.02/2017-Integrated Tax (Rate), as amended, in respect of the goods imported under the Bill of Entry dated 24.09.2020, was rejected and a demand for differential duty of Rs.5,14,380/- was raised under Section 28(8) of the Act, together with applicable interest.
2. The petitioner filed the Bill of Entry dated 24.09.2020 for clearance of the imported goods described as “Rice Bran”, classifying the same under tariff item 23024000 and claiming the benefit of Serial No.102 of Notification No.02/2017-Integrated Tax (Rate). The petitioner accordingly paid IGST at Nil rate.
3. The Bill of Entry was subsequently taken up for audit. According to the Department, the goods, namely, rice bran imported from Indonesia, were classifiable under CTH 23024000 but were liable to IGST at 5% under Serial No.103B of Schedule I to Notification No.01/2017-Integrated Tax (Rate). The Department, therefore, treated the petitioner as having short-paid the applicable IGST.
4. Proceedings under Section 28(4) of the Act were thereafter initiated. The Department alleged that the petitioner had wilfully misclassified the goods and wrongly availed the benefit of the notification. It is stated that the petitioner did not submit a reply to the show cause notice or participate in the adjudication proceedings and, consequently, the impugned order came to be passed on the basis of the materials available on record.
5. Heard the learned counsel appearing for the petitioner and the learned Senior Standing Counsel appearing for the respondent.
6. The petitioner contends that the differential duty of Rs.2,43,449/- together with interest of Rs.83,520/- had already been paid on 30.12.2023. It is further contended that the Bill of Entry disclosed the description and classification of the goods and that the same was accepted by the proper officer. According to the petitioner, there was no suppression of facts, wilful misstatement or collusion so as to justify invocation of the extended period of limitation under Section 28(4) of the Act.
7. The Department, on the other hand, contends that the extended period prescribed under Section 28(4) was rightly invoked on the ground that the petitioner had wilfully misclassified the goods and had thereby fraudulently availed the benefit of the notification.
8. The short question that arises for consideration is whether the ingredients necessary for invoking Section 28(4) of the Act are made out in the facts of the present case.
9. The bill of entry is dated 24.09.2020 which was accepted by the proper officer on the same day. Section 28(1) of the Act applies where duty has not been levied, has been short-levied, has been erroneously refunded, or has been short-paid, for reasons other than collusion, wilful misstatement or suppression of facts. In such cases, Section 28(1)(a) requires the proper officer to issue a notice within two years from the relevant date, calling upon the person chargeable with duty to show cause why the amount specified in the notice should not be paid.
10. Section 28(4), on the other hand, applies where such non-levy, short-levy, non-payment or short-payment of duty is by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter. In such cases, the proper officer is empowered to issue the notice within five years from the relevant date.
11. Therefore, the mere fact that the Department subsequently takes a different view regarding the classification of the goods or the applicability of an exemption notification would not, by itself, justify invocation of Section 28(4). There must be material to establish that the short-payment was occasioned by collusion, wilful misstatement or suppression of facts.
12. In the present case, the petitioner disclosed the description of the imported goods as “Rice Bran” in the Bill of Entry and declared the classification under CTH 23024000. The petitioner also specifically claimed the benefit of the relevant notification. The Bill of Entry was processed and accepted by the proper officer.
13. There is no material placed before this Court to show that the petitioner had concealed the nature, description, classification or any other material particulars relating to the imported goods. Equally, there is no material demonstrating that the petitioner had deliberately furnished a false declaration or suppressed any material fact with an intention to evade payment of duty.
14. The dispute, therefore, appears to be essentially with regard to the applicability of the exemption notification and the rate of IGST payable on the imported goods. Such a dispute, in the absence of material establishing the ingredients specified in Section 28(4), cannot by itself justify invocation of the extended period.
15. The mere use of the expression “wilful misstatement” in the show cause notice or in the impugned order cannot confer jurisdiction under Section 28(4). The Department is required to establish the factual basis for such allegations by placing relevant material on record. In the present case, no such material has been demonstrated before this Court.
16. The fact that the petitioner had already paid Rs.2,43,449/- towards differential duty and Rs.83,520/- towards interest on 30.12.2023 may be relevant to the proceedings, but the legality of the demand for the balance amount is not being examined in this writ petition. This Court is also not expressing any opinion on the correct classification of the goods or the rate of IGST otherwise payable.
17. The respondent has raised an objection that the petitioner has an effective alternative remedy of appeal under Section 128 of the Act. Ordinarily, the existence of such remedy is a relevant consideration in the exercise of jurisdiction under Article 226 of the Constitution. However, the rule of alternative remedy is not an absolute bar where the proceedings are challenged on the ground that the statutory conditions for assuming jurisdiction have not been satisfied.
18. In the present case, the principal challenge is to the invocation of the extended period of limitation under Section 28(4) of the Act. As already alluded above the essential conditions for invoking the said provision have not been satisfied. The objection raised by the respondent regarding the availability of an alternative remedy cannot, therefore, by itself, bar the exercise of writ jurisdiction. It is well settled that the existence of an alternative remedy is not an absolute bar to the jurisdiction of this Court under Article 226 of the Constitution, particularly where the impugned proceedings suffer from patent illegality or the statutory conditions for assuming jurisdiction have not been fulfilled. In the facts of the present case, relegating the petitioner to the appellate remedy would, therefore, not be warranted.
19. Accordingly, the writ petition is allowed and the impugned order-in-original dated 13.02.2025 is set aside. However, this order shall not preclude the respondent from taking such action as may otherwise be permissible under Section 28 of the Act, subject to the applicable period of limitation and other statutory requirements.
20. Consequently, the connected miscellaneous petitions are closed. There shall be no order as to costs.
