Customs Cannot Rely On S.122A To Deny Personal Hearing Mandatory U/S 28(8) Of Customs Act: Kerala High Court
The Kerala High Court stated that customs cannot rely on Sec. 122A to deny personal hearing mandatory under Section 28(8) of the Customs Act. Justice Ziyad Rahman A.A. after analysing Section 28(8) of the Customs Act observed that it is evident that, as far as personal hearing is concerned, it is made mandatory as per the provision. Since this is a special provision deals with the...
The Kerala High Court stated that customs cannot rely on Sec. 122A to deny personal hearing mandatory under Section 28(8) of the Customs Act.
Justice Ziyad Rahman A.A. after analysing Section 28(8) of the Customs Act observed that it is evident that, as far as personal hearing is concerned, it is made mandatory as per the provision. Since this is a special provision deals with the issue on hand, the reliance placed by the department upon Section 122A, which is a general provision, cannot be made applicable to the case.
Section 28(8) Of Customs Act, 1962 provides that the proper officer must give the person an opportunity to be heard and consider the representation before determining the amount of duty or interest which should not exceed what is specified in the notice.
Section 122A Of Customs Act, 1962 outlines the adjudication procedure for proceedings related to the confiscation of goods and conveyances and the imposition of penalties. It mandates that the adjudicating authority must provide an opportunity for a party to be heard if requested.
In this case, the assessee/petitioner had made exports against 397 shipping bills during the period from 01.01.2020 till 30.06.2022. Out of the said shipping bills, there were short realization in respect of 22 bills to an extent more than 12.5% of the FOB value.
Therefore, notice (Ext.P1) was issued by the Deputy Commissioner/2nd respondent under Rule 18 of the Customs and Central Excise Duty Drawback Rules, 2017, proposing to recover the availed duty drawback in proportion to the sale proceeds not realized/short realized.
As per Ext.P1, the assessee was granted 30 days' time to submit their objection to the proposal. The same was finalized as per Order (Ext.P2), for the reason that the assessee failed to respond the same. Accordingly, the demand was confirmed against the assessee.
The assessee submitted that the Order is not legally sustainable in view of the fact that the statutory requirement of personal hearing was not provided to the petitioner as contemplated under Section 28(8) of the Customs Act, 1962.
The department submitted that as per Section 122A of the Customs Act, the adjudicating authority may grant an opportunity of being heard to a party in a proceeding, if the party so desires.
An opportunity for personal hearing should have been granted in the light of the statutory stipulations contained in Sub-Section 8 of Section 28, added the bench.
The bench opined that “in the light of the statutory stipulation contained in Section 28(8), it is not sufficient, and it was obligatory on the part of the Deputy Commissioner/2nd respondent to intimate the assessee about specific date on which the assessee was supposed to appear for personal hearing. Since such course has not been adopted in this case, the order cannot be treated as the one that is in tune with the statutory requirements.”
In view of the above, the bench allowed the petition.
Case Title: M/s Premier Marine Foods v. Union of India
Case Number: WP(C) NO.46801 OF 2024
Citation: 2025 LiveLaw (Ker) 381
Counsel for Petitioner/ Assessee: Jazil Dev Ferdinanto, Jose Jacob, Sreelekshmi Ben and Anne Maria Mathew
Counsel for Respondent/ Department: P.R. Sreejith