Customs duty show-cause notice u/s28-extension of adjudication time not communicated to importer upheld; writ rejected

The dominant issue was whether adjudication of a customs SCN issued under s. 28 of the Customs Act was vitiated because an extension of time for passing the order was not communicated to the importer. The HC held that s. 28(9) permits extension but does not mandate prior intimation, unlike s. 110(2) which expressly requires informing the person before extending time; therefore, non-communication, though generally desirable, was not a fatal illegality. Noting also that the importer had not filed a substantive reply on merits to refute the verification email regarding the COOs, the HC declined writ interference and left the importer to the statutory appeal, permitting filing within one month.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether adjudication pursuant to the SCN was barred under Section 28(9) of the Customs Act, 1962 on the ground that the order was not passed within one year and the extension, if any, was not communicated to the noticee.

(ii) Whether non-communication of an extension granted under Section 28(9) is a fatal defect requiring the Court to interdict adjudication and/or set aside the adjudication outcome.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i) & (ii): Effect of non-communication of extension under Section 28(9) on validity of adjudication

Legal framework (as discussed by the Court): The Court examined Section 28(9) of the Customs Act, 1962, including its proviso permitting an officer senior in rank to extend the adjudication period, and contrasted it with Section 110(2), which expressly requires that the person from whom goods were seized be informed before expiry of the period if extension is granted.

Interpretation and reasoning: The Court found that the statutory schemes of Section 28(9) and Section 110(2) are not identical. While Section 110(2) contains an explicit stipulation to "inform the person" before expiry of the specified period when extending time, Section 28(9) contains no such stipulation mandating communication of the extension order to the noticee. On that construction, the Court held that absence of intimation/communication of the extension order does not, by itself, invalidate the continuation or completion of adjudication under Section 28(9). The Court also noted, as a matter of fairness and administrative propriety, that the Department "ought to intimate" any extension, but treated non-intimation as non-fatal because the statute does not mandate it.

Conclusions: The Court concluded that the petitioner failed to establish a ground for interference on the basis of non-communication of the extension. Since communication is not mandated by Section 28(9), adjudication was not vitiated merely because the extension order was allegedly not intimated. Consequently, no writ interference was warranted, especially where an appealable adjudication order had been passed and the petitioner had not substantively contested the SCN on merits before the adjudicating authority.

Relief and directions flowing from the conclusions: The Court declined to interdict the adjudication and held that the adjudication order is appealable. It permitted filing of an appeal within one month, directing that if filed within that period it shall not be treated as time-barred and shall be decided on merits; all rights and contentions were left open.

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