Personal Hearing under Customs Act: Kerala HC Reaffirms Right under Section 28(8)
Mandatory personal hearing under Section 28(8) of Customs Act is not optional—even when Section 122A comes into play. This was clearly held by the Kerala High Court in a recent ruling, bringing relief to importers and exporters facing adjudication proceedings under the Customs law.
In this blog, we break down what this ruling means, the legal provisions involved, and how you can use this precedent to safeguard your rights.
What is Section 28(8) of the Customs Act?
Section 28 of the Customs Act, 1962 deals with recovery of duties not levied or short-levied. Sub-section (8) specifically mandates that before passing any order demanding duty, the adjudicating authority shall offer the person a personal hearing, if requested.
Key features of Section 28(8):
- Applies to notices issued for short-levy, non-levy, or erroneous refund.
- Grants statutory right to a personal hearing.
- Designed to ensure natural justice in adjudication.
What does Section 122A say?
Section 122A provides a general provision for personal hearing, stating that an adjudicating authority may, at its discretion, provide a hearing either in person or through video conferencing.
But here’s the catch: it uses the word “may”, unlike Section 28(8) which uses “shall”, making it mandatory.
Kerala HC Verdict: What Happened?
In the case K. U. Niyas v. Commissioner of Customs, the petitioner challenged an adjudication order where no personal hearing was granted, despite requesting it under Section 28(8). The Department justified it by citing Section 122A, claiming a virtual hearing was enough.
The Kerala High Court disagreed.
It ruled that:
“Section 28(8) uses mandatory language. Denying a hearing based on Section 122A violates principles of natural justice.”
The Court quashed the order and directed a fresh adjudication with proper hearing.
Why this matters for taxpayers and consultants
This ruling makes it legally clear that:
- You cannot be denied a hearing if you request one under Section 28(8).
- Authorities must offer a meaningful hearing—even if Section 122A gives flexibility on mode.
- If denied, such adjudication orders can be challenged and quashed in High Court.
Practical Tips for Consultants and Importers
- Always request a personal hearing in response to notices under Section 28.
- If denied, cite the Kerala HC ruling to demand your right.
- Keep email and written records of requests for hearings.
- Prefer video or in-person hearing as per convenience—but ensure it happens.
Expert View
“Section 28(8) acts as a safeguard. Adjudicating without hearing is not just a procedural defect—it’s a constitutional violation. This judgment reinforces the importance of due process in tax adjudication.”
– Advocate M. Rajeev, Indirect Tax Counsel, Kochi.
Legal Reference Table
| Provision | Key Feature | Binding Nature |
|---|---|---|
| Section 28(8) | Mandatory personal hearing | Compulsory if requested |
| Section 122A | Manner of hearing (in-person/video) | Discretionary |
| Kerala HC Ruling (2024) | Personal hearing cannot be denied using 122A | Binding within state, persuasive elsewhere |
FAQs
Q1. Is Section 28(8) applicable for all Customs notices?
Only those involving short-levy, non-levy, or erroneous refund under Customs Act.
Q2. Can a virtual hearing be considered valid?
Yes, if it is offered and conducted properly. But not offering any hearing is illegal.
Q3. Can this ruling be used in other states?
Yes, it’s persuasive across India until the Supreme Court or respective High Courts decide otherwise.
Final Thoughts
The mandatory personal hearing under Section 28(8) of the Customs Act is a crucial right. Don’t let it be bypassed by vague references to Section 122A. If you’re facing adjudication, assert your hearing request in writing, and rely on this Kerala High Court ruling to defend your procedural rights.
For expert help in drafting replies, handling customs litigation, or representing in hearings, connect with our team at Efiletax.
Summary
Section 28(8) of the Customs Act mandates a personal hearing before duty demand orders. Kerala HC ruled this right can’t be denied using Section 122A. Taxpayers must assert this right to ensure fair adjudication. Learn how to safeguard your case with expert tips.
CTA:
Need help responding to a Customs notice or drafting a reply under Section 28? Talk to Efiletax experts today for strategic and compliant support.