Recovery of sums due to government

Draft:

Implications of Section 142:

Section 142 becomes operational only where any sum payable by any person under the Customs Act is not paid.  S.142 cannot be invoked where no such time limit is specified and exhausted. In the absence of any time limit is specified, separate demand notice has to be issued specifying the time limit within which the amount is to be paid.So, it is incumbent on the authority demanding any amount by way of assessment, adjudication or levying penalty, to specify the time limit within which the amount is to be paid.  

Unless such time limit to pay the duty or penalty is specified in the adjudication or appeal order or a demand notice is issued specifying the time limit to pay the duty or penalty, recovery proceedings either under section 142 (1) (a) or under section 142 (1) (b) cannot be initiated. 

Failure to specifity the time limit in the order-in-original or order-in-appeal, to pay the duty demanded or penalty imposed involves avoidable workload and delay to issue demand notice. 

Implications of Section 129 E:

The norm is "the person desirous of appealing against such decision or order shall, pending the appeal deposit with the proper officer duty and interest demanded or penalty levied:"

In respect of goods which are not under the control of the customs authorities alone waiver of pre-deposit is allowed on condition. 

So, in respect of goods which are under the control of the customs authorities, there is no scope of waiver of pre-deposit available under the first proviso to Section 129 E.   

Section 129 E categorically says, 

“Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal deposit with the proper officer duty and interest demanded or penalty levied.

Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue: . . ."

Hence in respect of goods under the control of the customs, the adjudicating or appellate authority may straight away order to recover the sums due u/s 142 (1) (a) or (b) cas the case may be, if the amount is not paid within the specified time.

For example: Order in Original is passed by AC demanding more duty than self assessed by an importer and levied penalty who did not clear the goods after paying the duty re-assessed by customs but chose to appeal against.  In this case the importer shall pay the duty demanded and the penalty levied to become eligible to appeal.


142. RECOVERY OF SUMS DUE TO GOVERNMENT. –

(1) Where any sum payable by any person] under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid,—

(a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or

(b) the Assistant Commissioner of Customs may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the Assistant Commissioner of Customs or such other officer of customs; or

(c) if the amount cannot be recovered from such person in the manner provided in clause (a) or clause (b) –

(i) the Assistant Commissioner of Customs may prepare a certificate signed by him specifying the amount due from such person and send it to the Collector of the district in which such person owns any Property or resides or carries on his business and the said Collector on receipt of such certificate shall proceed to recover from such person the amount specified there under as if it were an arrear of land revenue; or

(ii) the proper officer may, on an authorisation by a Commissioner of Customs and in accordance with the rules made in this behalf, distain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person.

Provided that where the person (hereinafter referred to as predecessor), by whom any sum payable under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by the proper officer, after obtaining written approval from the Commissioner of Customs, for the purposes of recovering the amount so payable by such predecessor at the time of such transfer or otherwise disposal or change.

(2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made there under provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (1), the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions of that sub-section.

 

129E. DEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIED. –

129E. Deposit, pending appeal, of duty and interest, demanded or penalty levied. —Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal deposit with the proper officer duty and interest demanded or penalty levied:

Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the 3 [Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue:

Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.

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