Holding

Section 28 of the Customs Act imposes a procedural duty to issue a notice, which may be waived by the person concerned, and its non‑issuance does not deprive the officer of jurisdiction to recover escaped duty.

Summary

The Commissioner of Customs, Mumbai initiated recovery proceedings against Mis. Virgo Steels and Associated Cement Company Ltd for duty‑free steel imported after the cement project was abandoned, in violation of the Deemed Export Scheme. Virgo Steels admitted the illegality in a letter, expressly waived its right to a show‑cause notice and personal hearing, and offered to pay duty and penalty. The Tribunal held that non‑issuance of a notice under Section 28 of the Customs Act vitiated the proceedings, allowing Virgo Steels' appeal, while upholding the penalty on the cement company. On appeal, the Supreme Court held that Section 28 merely prescribes a procedural step; the officer's jurisdiction to recover escaped duty does not depend on that notice, and a mandatory statutory right can be waived by the person concerned. Consequently, the waiver by Virgo Steels was valid, the lack of notice did not render the proceedings void, and the Revenue's appeal was allowed, restoring the Collector's order. The Court dismissed the other appeals and affirmed the factual finding that Virgo Steels had illegally imported the steel.

Issues considered

The notice under Section 28 of the Customs Act, 1962, is a condition precedent to the officer's jurisdiction for recovery of escaped duty.
Whether a mandatory statutory requirement, such as the Section 28 notice, can be waived by the person concerned.
Whether the absence of a Section 28 notice renders the recovery proceedings void.
Whether the waiver of the right to a show‑cause notice by Virgo Steels is valid and effective.

Legislation cited

Customs Act, 1962s. 12, s. 142, s. 17, s. 28
Representation of the People Act, 1951s. 94
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 21(1)(a)

Subjects

Customs dutySection 28Waiver of statutory rightShow‑cause noticeProcedural requirementJurisdiction of customs officerDeemed Export SchemeIllegal importPenalty

Judgment

A COMMISSIONER OF CUSTOMS, MUMBAI T

v.
t.

'" MIS. VIRGO STEELS, BOMBAY AND ANR.

APRIL 4, 2002

B [S.P. BHARUCHA, CJ., N. SANTOSH HEGDE AND
ARIJIT PASAYAT, JJ.]

A

Customs Act, 1962-Section 28-Notice of payment of duty, interest-
C Principle of waiver-Applicability-Whether mandatory requirement of
issuance of notice under the Section can be waived and whether notice under
the Section being a condition precedent to invoke jurisdiction of the officer
concerned, in the absence of such notice proceedings initiated for recovery of
duty became void-On facts, held right of notice being personal to the person
concerned can be waived by that person-Further the notice being condition
D precedent is referable to the procedural requirement of the section and not to
be jurisdictional aspect of the proper officer to recover the escaped duty-
Thus in absence of such notice proceedings initiated for recovery of duty is
not void

A Cement company floated tender inviting supply of steel bars for a ...........

E project Respondents offered to supply steel bars and the company accepted
the offer. Respondents obtained an advance licence under the Deemed Export
Scheme for duty-,free important of steel. Company however abandoned the
work of expansion and the licence for importation of duty-free steel became
invalid. lnspite of this, respondents imported certain quantities of steel duty-
F free. Since the import made by respondents after the abandonment of the
project was in contravention of the provisions of the Customs Act, 1962
Commissioner of Customs decided to initiate proceedings against respondents.
Respondents wrote a letter to Assistant Collector of Customs admitting that
.the duty-free import was illegal and they were ready to pay the duty
chargeable under the said import as also any other penalty imposed. They
...
G further stated they did not want any show cause notice and personal hearing.
' They also enclosed a cheque as a token of their commitment in the letter.
Collector of Customs after deducting amounts already deposited by them,
made a demand for the balance sum along with a penalty. Collector also
imposed a penalty on the cement company for having abetted the illegal
H import of the said sale. Respondents and cement company filed appeals.
934
COMMR. OF CUSTOMS v. VIRGO STEELS 935
Tribunal partly allowed respondents appeal holding that the non-issuance of A
show cause notice as required under Section 28 of the Act had vitiated the
proceedings initiated by the Collector of Customs. The cement company's
appeal was also allowed holding that there was no intentional or otherwise
abetment by cement company because they had already informed respondents
of their decision to abandon their expansion project.
B
In appeals before this Court, appellant-revenue contended that the
Tribunal has erred in coming to the conclusion that the principle of waiver
did not apply to the requirement of notice under Section 28 of the Act. He
submitted that by letter, respondents had in specific terms admitted the
violation of conditions of the licence granted to it under the Deemed Export C
Scheme as also the firm's liability to pay duty and penalty. The firm had also
expressly waived its right to receive a show-cause notice as also personal
hearing.

Respondents contended that a notice under Section 28 of the Act being
a condition precedent to invoke the jurisdiction of the officer concerned, in D
the absence of such notice proceedings initiated for the recovery of duty
became void. He also submitted that the principle of waiver does not apply
to a mandatory requirement of law. He further contended that the letter was
obtained by the customs authorities under coercion and duress, therefore,
there could be no waiver based on such letter.
E
Disposing of the appeals, the Court

HELD : I.I. Section 28 of the Customs Act only provides for the
procedural aspect for recovery of duty, hence, any irregularity committed
by a proper officer in following the procedure laid down in Section 28 would
not denude that officer of his jurisdiction to initiate action for recovery of F
escaped duty but it may make such proceedings initiated by that officer
voidable. Thus the terms "condition precedent" used in the case of Tin Plate

-
Co.• is referable to the procedural requirement of Section 28 and not to the
jurisdictional aspect of the proper officer to recover the escaped duty and
the law laid down in Tin Plate Co. s case is that issuance of a notice under • G
•
Section 28 is a mandatory requirement of that section, which is concurred
with. [941-C, EJ

1.2. Even though a provision oflaw is mandatory in its operation if such
provision is one which deals with the individual rights of person concerned
and is for his benefit, the said person can always waive such a right. Therefore, H
936 SUPREME COURT REPORTS [2002] 2 S.C.R.

A if the mandatory requirement of issuance of notice under Section 28 of the
Act is considered, it will be seen that requirement is provided by the Statute
'(
solely for the benefit of the individual concerned, therefore, he can waive that
right. In other words, this section casts a duty on the officer to issue notice to )...

the person concerned of the proposed action to be taken. This is not in the
nature of a public notice nor any person o~her than the person against whom
B the proceedings are initiated has any right for such a notice. Thus this right
of notice being personal to the person concerned, the same can be waived by
that person which is the correct position of law. In the instant case, the '
~
,
respondents having specifically waived its right for a notice, cannot now be
permitted to turn around and contend that the proceedings initiated against A

c them are void for want of notice under Section 28 of the Act, so as to frustrate
the statutory duty of the appellant-Revenue to demand and collect customs
duty which respondents had intentionally evaded. (943-B-D}

*Collector of Customs, Calcutta v. Tin Plate Co. of India Ltd, (1996) 87
ELT 589; Ve/layan Chettiar v. Government of Province of Madras, Am (1947)
D PC 197; Dhirendra Nath Gorai and Subal Chandra Shaw and Ors. v. Sudhir
L

Chandra Ghos and Ors., [1964) 6 SCR 1001; S. Raghbir Singh Gill v. S. ...._ •
Gurcharan Singh Tohra and Ors., (1980] Supp SCC 53; Krishan Lal v. State of
J and K, (1994] 4 SCC 422 and Martin and Harris Ltd v. 6th Additional Distt.
"'
Judge and Ors., [1998} 1 SCC 732, relied on.

E 2. An oral submission was made before the Collector that the letter in ~-,.

question was obtained by coercion but no affidavit was filed in support of
that allegation. Collector rejected the contention holding that at no stage till
the final submission of reply respondent made any grievance of coercion of l
any other undue influence in obtaining the letter. This argument of coercion ,.,._

F in obtaining the letter was not even pressed before the tribunal. The tribunal
extracted the argument of respondent where there is no reference whatsoever
as to the non-voluntary nature of the letter. Thus for all these reasons,
respondent's contention that the letter was not voluntarily submitted by them

G
is totally baseless and an afterthought and is thus rejected. [940-B-DJ

3. On the facts and circumstances of the case having found that notice
was not necessary the appellant-Revenue's appeal succeeds. However, in
..
respect of Revenue's other appeal and assessee's appeals, the finding being a '-y
finding of fact is not interfered with. (943-F; 944-A]

CIVIi, APPELLATE JURISDICTION : Civil Appeal Nos. 3711-12
H of 2000.
COMMR. OF CUSTOMS v. VIRGO STEELS [SANTOSH HEGDE, J.] 937

From the Judgment and Order dated 14.9.1999 of the Customs Excise A
and Gold (Control) Appellate Tribunal, Mumbai in A. Nos. cil 994i92B-2,
151/94-Bom in F.O. No. C-l li241 l-12i99 WB.
WITH

C.A. Nos. 48-49 of 200 I.
B
Harish N. Salve, Solicitor General, Rajiv Dutta, A.N. Haksar, N.K. Bajpai,
Ms. Smita Inna, Ms. Meenakshi Sakhardande, B. Krishna Prasad, Pradeep
Kumar Bakshi, Sumeet Lall, U .A. Rana and Prasant Bezboruah for the
appearing parties.

The Judgment of the Court was delivered by :
• c
SANTOSH HEGDE, J. Mis. Associated Cement Company Ltd. (for
short 'ACC') had embarked upon a project of substantial expansion all;d
modernisation of its cement factory at Shahabad in Karnataka. The ACC had
floated a tender inviting supply of high standard deformed steel bars. In that
tender, ACC had claimed that the project was aided by the International Bank D
for Reconstruction and Development (for short 'the IBRD') .·which would
give the importer exemption from the import duty. In response to the said
te.nder, Mis. Virgo Steels made an offer to supply 5, 187 MT of steel. The offer
was accepted by the ACC and the said Virgo Steels obtained an advance
licence under the Deemed Export Scheme for duty-free import of the concerned
• steel under Notification No.21 Oi82. This notification specifically required that E
if the goods in question ';"as not used for the purpose for which importation
was permitted then the importer was liable on demand to pay a sum equivalent
to the duty leviable. Sometime in November, 1988, the ACC decided to abandon
the work of expansion, hence, the licence obtained under the above said
scheme for importation of duty-free steel became invalid. In spite of the same
Mis. Virgo Steels imported certain quantities of steel duty-free knowing very
F
well that the expansion project by the ACC had been abandoned. It is on

-
record that Mis. Virgo Steels asked ACC to issue a signed export certificate
in regard to actual quantities of steel supplied by it for the purpose of duty
exemption, but the ACC pleaded their inability to provide such Deemed Export
Certificate in view of the fact that it had abandoned its project. G
In the above factual background and on the basis of certain information
received by the Marine Preventive Wing of Mumbai, Customs investigations
were conducted in regard to the import and illegal sale of steel by Mis. Virgo
Steels. Based on the said investigation, Commissioner of Customs, Mumbai
came to the conclusion that the import made by Mis. Virgo Steels after the H
938 SUPREME COURT REPORTS (2002] 2 S.C.R.

A abandonment of the project by the ACC was in contravention of the provisions
of the Cus!oms Act, 1962 ('the Act'), hence, decided to initiate proceedings
against Mis. Virgo Steels and ACC. Having come to know of this decision of
the Commissioner of Customs, to pre-empt any penal proceedings,
consequences of Which could have been very serious, Mis. Virgo Steels wrote
B a letter dated 30.3.1991 to the Assistant Collector of Customs, Marine
Preventive Wing, Mumbai admitting in clear terms that the import of 24,326
MT of Billets and 2300 MT of Lead Ingot by them, and cleared duty-free
under the DEC Scheme was ill~gal. They also admitted that the said material
was sold in the market contrary to the terms of said Import Scheme and
assured the former that they were ready to pay the duty chargeable under the
C said import as also any other penalty that may be imposed on them. The
relevant part of the said letter is as under:- "In this respect it is our humble
submission that we are ready to pay the duty chargeable of 24,326 MT of
Billets and 2300 MT of Lead Ingot along with any other penalty imposed on
us. We do not want any show cause notice and personal hearing in the matter. "
(emphasis supplied) . Along with the said letter they also enclosed a cheque
D for a sum of Rs.50 lacs though post dated as a token of their commitment
made in the said letter.

Based on the said letter, the Collector of Customs vide his order dated
16.3.1993 held that duty amounting to Rs. 1,50,11,858 was leviable on the
goods cleared by Mis. Virgo Steels and after giving deductions for such amounts
E already deposited by them, a demand for the balance sum of Rs. 72,02,060
was made on Mis. Virgo Steels along with a pen~lty of Rs. 5 lacs. In regard
to ACC, the Collector imposed a penalty of Rs. 5 lacs for having abetted the
illegal import of the said sale.
Mis. Virgo Steels and ACC preferred their respective appeals before the
F Customs, Excise & Gold (Control) Appellate Tribunal (for short 'the Tribunal')
The Tribunal by the impugned order though rejected the contention of Ml
s. Virgo Steels as to the genuineness of the imports, still allowed their appeal
holding that the non issuance of show cause notice as required under Section
28 of the Act had vitiated the proceedings initiated by the Collector of Customs,
G hence, partially allowed their appeal. The appeal of the ACC was also allowed
holding that there was no intentional or otherwise l,lbetment by ACC because
they had already informed Mis. Virgo Steels of their decision to abandon their
expansion project and had alsQ refused to give Mis. Virgo Steels a certificate
justifying the import made by them.

H It is against this order of the Tribunal made in appeal No.C-l 994/92-B2,
COMMR. OF CUSTOMS v. VIRGO STEELS [SANTOSH HEGDE, J.] 939

of Mis. Virgo Steels and Appeal No.Cll51194.Bom. filed by the ACC, the A
abovenoted four appeals have been preferred before this Court, out of which
~
Revenue has filed two appeals out of which C.A.No.371 l of 2000 is against
the order of the Tribunal allowing the appeals filed by Mis. Virgo Steels, in
part, and C.A. No.3712 of2000 is against the order of the Tribunal, allowing
the appeal of ACC in its entirety, while Mis. Virgo Steels being aggrieved by
that part of the order which has gone against has preferred C.A.Nos.48-49 of B
200!.

-.
fl
Learned Solicitor General appearing for the Revenue, contended before
us that the tribunal has erred in coming to the conclusion that the principle of
~
waiver did not apply to the requirement of notice under Section 28 of the Act.
He submitted that by the letter of 30.3.1991, the Managing Partner of Mis.
c
Virgo Steels had in specific terms admitted the violation of conditions of the
licence granted to it under the Deemed Export Scheme as also the fmn's
liability to pay duty and penalty. He further submitted that the firm having
expressly waived its right to receive a show-cause notice as also personal
. hearing, it cannot be permitted to tum around and say that non-issuance of D
notice under Section 28 of the Act is fatal to the Revenue. Mr. Rajiv Dutta,
>
learned senior counsel appearing for Mis. Virgo Steels, while defending the
order of the tribunal, submitted that a notice under Section 28 of the Aci being
a condition precedent to invoke the jurisdiction of the Officer concerned, in
the absence of such notice proceedings initiated for the recovery of duty
E
became void. He also submitted that the principle of waiver does not apply to
a mandatory requirement of law. He further contended that the letter of
30.3 .1991 was obtained by the Customs Authorities under coercion and duress,
therefore, there could be no waiver based on such letter. He further assailed
the finding of the Tribunal that the import made by Mis. Virgo Steels was not
for the purpose of a project aided by the IBRD. F
We will first consider the argument of learned counsel for Mis. Virgo
Steels that their letter of 30.3.1991 was written by the fmn because of coercion
and duress, hence, cannot be relied upon. This argument was raised for the

- -.-
first time before the Collector during the course of arguments of learned
counsel appearing for Mis. Virgo Steels in the adjudicatory proceedings. It is
to be seen that the said letter is dated 30.3.1991 and the argument of learned
counsel was addressed on 3.12.1992 - i.e. more than one and a half years after
the said letter was sent to the Collector concerned. During that period of over
G

one and a half years, the Partner of the Company who had signed the letter
or anybody else on behalf of the firm, made no attempt to resile from the
H
J
940 SUPREME COURT REPORTS [2002] 2 S.C.R.

A contents of the said letter. They have neither made any complaint nor taken
any steps to get over the contents of the letter written on behalf of the firm
on 30.3 .1991. It is relevant to note at this stage that along with the letter, a ·
post-dated cheque was sent and no steps were taken to stop payment against
that cheque either. Before the Collector though an oral submission was made
by learned counsel that the letter in question was obtained by coercion not
B even an affidavit was filed in support of that allegation. The Collector by his
order, had rejected the said contention holding that at no stage till the final
submission of reply on 3.12.1992, M/s. Virgo Steels had made any grievance
of coercion or any other undue influence in obtaining the letter of 30.3.1991.
It is aiso necessary to note herein that this argument of coercion in obtaining
C the letter of 3.12.1992 seems not to have been pressed before the Tribunal.
The Tribunal in its impugned order in paras 8 and 9 has extracted the argument
oflearned counsel for Mis. Virgo Steels where we find no reference whatsoever
as to the non-voluntary nature of the letter of30.3.1991. For all these reasons,
we have no hesitation in rejecting this contention of M/s. Virgo Steels that the
letter of 30.3.1991 was not voluntarily submitted by them. This argument
D before us, in our opinion, is totally baseless and an afterthought.

We will next consider the requirement of Section 28 of the Act and the
applicability of the principle of waiver to the said requirement of that Section.
While so doing, it is to be noted that our discussion of Section 28 of the Act
~II
E is with reference to the Section as it stood at the relevant time and not with I Ji:
reference to the existing Section 28 of the Act. The Tribunal by the impugned
order has held that in the absence of a notice under Section 28 of the Act, the
recovery of duty which has escaped collection, is impermissible in law. While
accepting this argument, the Tribunal has placed reliance on a judgment of
this Court in Collector of Customs, Calcutta v. Tin Plate Co. of India Ltd.
F (1996) 87 ELT 589. It is true that in the course of the above-cited judgment,
this Court had held that a notice under Section 28 is a condition precedent, but
having perused the said judgment carefully, we are of the opinion that this
Court used the expression "condition precedent" with reference to issuance of
notice under Section 28 and not with reference to the jurisdiction of the proper
G Officer under that Section. While the absence of notice may invalidate the
procedure adopted by the proper Officer under the Act, it will not take away
the jurisdiction of the Officer to initiate action for the purpose of recovery of
duty escaped. This is because of the fact that the proper Officer does not
derive his power to initiate proceedings for recovery of escaped d~ty from
Section 28 of the Act. Such power is conferred on him by other provisions of
H the Act which mandate the proper Officer to collect the duty leviable. By a
COMMR. OF CUSTOMS v. VIRGO STEELS [SANTOSH HEGDE, J.] 941

perusal of Chapter V of the Act in which Section 28 is found, it is seen that A ··
the charging Section which authorises the levy of customs duty is found in
Section 12 of the Act. Section 17 contemplates the procedure for making an
assessment in regard to duty payable while sub-section (4) of Section 17
makes a provision to empower the proper Officer to reassess the imported
goods for duty if it is found that the assessment made at the time of importation B
was based on incorrect or false information. Section 142 of the Act found in
Chapter XVIII provides for actual recovery of sums due to the Government.
A cumulative reading of these provisions found in the Act clearly shows that
the jurisdiction of a proper Officer to initiate proceedings for recovery of duty
which has escaped collection, is not traceable to Section 28. The power to
recover duty which has escaped collection is a concomitant power arising out C
of the levy of customs duty under Section 12 of the Act, and the same does
not emanate from Section 28 of the Act. In our opinion, Section 28 only
provides for the procedural aspect for recovery of duty, hence, any irregularity
committed by a proper Officer in following the procedure laid down in Section
28 would not denude that Officer of his jurisdiction to initiate action for
recovery of escaped duty but it may make such proceedings initiated by that D.
Officer voidable. In that view of the matter, in our opinion, the term "condition
precedent" used in the case of Tin Plate Co. (supra) is referable to the procedural
requirement of Section 28 and not to the jurisdictional aspect of the proper
Officer to recover the escaped duty. In the said view of the matter, we are of
the opinion that the law laid down by this Court in Tin Plate Co. 's case (supra) E
is that issuance of a notice under Section 28 is a mandatory requirement of
that Section, with which we are in agreement. We also notice the very important
fact that in that case the question of waiver did not arise and what was
considered by this Court was the contention of the Revenue that a subsequent
letter written by the Revenue after the expiry of the period of limitation would
cure the defect of non-issuance of a notice. F
The next question for our consideration is: can a mandatory requirement
of a statute be waived _by the party concerned ? In answering this question, we
are aided by a catena of judgments of this Court as well as of the Privy
Council. We will first refer to the judgment of the Privy Council which has G
been consistently followed by the Supreme Court in a number of subsequent
cases involving similar points. In Vellayan Chettiar v. Government of Province
of Madras (AIR 1947 PC 197) , the Privy Council held that even though
Section 80 C.P.C. is mandatory, still non-issuance of such notice would not
render the suit bad in the eye of law because such non-issuance of notice can
be waived by the party concerned. In the said judgment, the Privy Council H
942 SUPREME COURT REPORTS [2002] 2 S.C.R. '
A held that the protection provided under Section 80 is a protection given to the
person concerned and if in a particular case that person does not require the
protection he can lawfully waive his right.
In the case of Dhirendra Nath Gorai and Subal Chandra Shaw and
Ors. v. Sudhir Chandra Ghosh and Ors., [1964] 6 SCR 1001, this Court
B followed the judgment oftht;l Privy Council in Vellayan Chettiar (supra) and
held that even though. the requirement of Section 35 of the Bengal Money
Lenders' Act is mandatory in nature, such mandatory requirement could be
waived by the party concerned. On a true construction of Section 35 of that
Act, this Court held that the said Section is intended only for the benefit of
the judgment-debtor and, therefore, he can waive the right conferred on him
C under the said Section.
In the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and
Ors., [1980] Supp SCC 53, this Court negatived an argument. that the
r!:lquirement of Section 94 of the Representation of the People Act, 1951
cannot be waived. This argument was based on the principle that public policy
D cannot be waived. Rejecting the ~aid argument, this Court held that the privilege
conferred or a right created by a Statute, if it is solely for the benefit of an
individual, he can waive it. It also held that where a prohibition enacted is
founded on public policy, courts should be slow to apply the doctrine of
waiver but if such privilege grante~ under the Act is for the sole benefit of an
E individual as is the ·case under Section 94 of the Representation of the people
Act, the person in whose benefit the privilege was enacted has a right to waive
it because the very concept of privilege inheres a right to waiver.
In Krishan Lal v. State of J & K, [1994] 4 s'Cc 422, this Court while
conside1 ing the requirement of furnishing copy of inquiry proce~dings under
F Section 17(5) of the J & K-(Govemment Servants) Prevention of Corruption
I-
Act, 1962 held foilowing the judgment in V. Chettiar 's case (supra} and D.N. t

Gorai (supra) that though the requirement mentioned in Section 17(5) of the
Act ·was mandatory, the same can be waived because the requirement of
giving a copy of the proceedings of the inquiry mandated by Section 17(5) of
the Act is one which is for the benefit. of the individual concerned.
G In Martin & Harris Ltd v. 6th Additional Distt. Judge and Ors. [19?8]
l SCC 732, this Court while considering the provision of Section 21(1) (a)
first proviso of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972' negatived a contention advanced on behalf of the appellant
therein that the said provision was "for public benefit and could not be waived.
H It held that it is true that such benefit enacted under the said proviso covered

' ...
COMMR. OF CUSTOMS v. VIRGO STEELS [SANTOSH HEGDE, J.] 943

a class of tenants, still the said protection would be available to a tenant only A
as an individual, hence, it gave the tenant concerned a locus poenitentiae to
avail the benefit or not. It also held that the benefit given under the said
section was purely personal to the tenant concerned, hence, such a statutory
benefit though mandatory, can be waived by the person concerned.

From the ratio laid down by the Privy Council and followed by this B'
Court in the above-cited judgments, it is clear that even though a provision of
law is mandatory in its operation if such provision is one which deals with the
individual rights of person concerned and is for his benefit, the said person
can always waive such a right.

Bearing in mind the above decided principle in law, if we consider the
c
mandatory requirement of issuance of notice under Section 28 of the Act, it
will be seen that that requirement is provided by the Statute solely for the
benefit of the individual concerned, therefore, he can waive that right. In.other
words, this Section casts a duty on the Officer to issue notice to the person
> concerned of the proposed action to be taken. This is not in the nature of a D
public notice nor any person other than the person against whom the proceedings
are initiated has any right for such a notice. Thus, this right of notice being
personal to the person concerned, the same can be waived by that person.

If the above position in law is correct, which we think it is, Mis. Virgo
Steels, having specifically waived its right for a notice, cannot now be permitted E
to turn around and contend that the proceedings initiated against them are void
for want of notice under Section 28 of the Act, so as to fiustrate the statutory
duty of the Revenue to demand and collect customs duty which Mis. Virgo
Steels had intentionally evaded.

Since the sole ground on which the appeal of Mis. Virgo Steels was F
allowed by the Tribunal is based on non-issuance or' a notice under Section
28 and we having found such a notice was not necessary in the facts and
circumstances of the case, the appeal of the Revenue as against Mis.' Virgo
Steels has to be allowed.
G
In C.A. Nos.48-49 of2001, Mis. Virgo Steels have, inter a/ia, questioned
the correctness of the findings of the tribunal as to the illegality of the import
of steel made by them, the Tribunal after considering the material on record
by the impugned order, has agreed with the finding of the Collector that Ml
s. Virgo Steels had imported the steel in question, duty-free representing that
the same was being imported for utilisation in a project financed by the IBRD H
944 SUPREME COURT REPORTS [2002] 2 S.C.R.

A but was in fact sold in the open market. This finding being one of facts and
having been arrived at by the Collector and the Tribunal on the basis of the
material on record, we are not inclined to disturb this finding, nor, indeed, do.
we find any good ground to do so. Hence, we find no merit in these appeals
and these appeals fail.

B C.A. No.3712 of 2000 is filed by the Revenue against the order of the
Tribunal which has allowed the appeal filed by ACC holding that there was
no material to come to the conclusion that ACC had abetted the illegal import
of steel by Mis. Virgo Steels. This finding also being a finding on a question
of fact, we are not inclined to interfere with this finding. At this stage we must
C place on record the fact that learned Solicitor General has very fairly conceded
that he is not in a position to persuade us to take a contra view in this appeal,
therefore, this appeal also fails.

For the reasons stated above, C.A. No.3711 of 2000 is allowed, the
impugned order of the Tribunal is set aside and that of the Collector restored.
D The appellant shall be entitled to costs payable by Mis. Virgo Steels, Mumbai. ...J.

C.A. No.3712 of 2000 is dismissed. No costs.

C.A. Nos.48-49 of 2001 are dismissed with costs.

E Ordered accordingly.

N.J. Appeals dismissed.

r·· ...