Circular No. 312/28/97-CXdated 22/4/97

It has been noticed that quite a lot of unnecessary litigation and avoidable work is created by indiscriminate issue of show cause notices/less charge demands invoking the proviso to Section 11-A of CESA or to Section 28 of the Customs Act, etc. even when there is no fraud or misdeclaration, etc., for example, where there has been an established practice well within the knowledge of one Department.

2. The Supreme Court has ruled in the case of M/s Padmini Products, and Chemphar Drugs, etc. that mere non-declaration is not sufficient for invoking the longer period, but a positive misdeclaration is necessary. These judgments should be studied carefully and it should be ensured that the law laid down by the Supreme Court is fully respected and followed and that longer period available under the proviso to Section II- A of CESA/Section 28 of the Customs Act is not invoked, without proper justification.

3. Where a view is taken that the long-established practice was wrong, or requires a change, firstly, the show cause notice/less charge demand cannot normally be issued beyond six months; and further in appropriate cases, the proposal to issue notification under Section II-C of CESA/Section 23-A of Customs Act, should also be made; and the recoveries of the disputed amounts need not be enforced where such requests for issue of notification under section II-C of CESA/Section 28-A of Customs Act are under consideration of the Board/Government.

3. These instructions should be followed strictly to avoid unnecessary litigation, and a feeling of harassment by the assessees.

Sd/-
(S.D. Mobile)
Chairman, C.B.E.C.

F.No. 296/88/97-CX.9

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