TaxTMI 
TaxTMI 
2019 (6) TMI 169
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.... up to 03.05.2019, thereafter, the appellant vide letter dated 10.11.2018 requested to provide copy of notice issued for seeking extension of time as per Section 110(2) which was responded by the Deputy Commissioner, Custom House-Kandla vide letter dated 29.11.2018 that no notice is required to be issued for seeking extension as per Section 2 of Section 110 of customs Act, 1962. Being aggrieved by the action of the department, the appellant filed the present appeal raising the question that whether the extension of time without issuance of any notice to the appellant is legal and correct. 2. Sh. Hardik Modh Ld. Counsel appearing on behalf of the appellant submits that as per old Section 110, as regard extension of 6 months of the seizer for issuance of SCN, the 6 months may be extended only on sufficient cause being shown. Though under amended Section 110 w.e.f. 29.03.2018, in place of 'sufficient cause being shown' was replaced with 'for reasons to be recorded in writing'. He submits that there is no substantial change even in the amended Section 110, according to it for reasons to be recorded in writing, the appellant must be put to notice then only the reasons can be recorded....
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....and there is a need for grant of more time for taking the investigation to its logical conclusion. There is no finding recorded that sufficient cause was made out by the Customs Officer. In view of the law laid down by the Apex Court and in view of the express words used in proviso to sub-section (2) of Section 110, the Commissioner could not have extended the time without recording his satisfaction on basis of the material on record that investigation is being pursued seriously and there is a need for more time for taking it to its logical conclusion. Merely because investigation is delayed, that is no ground for grant of extension of time so as to defeat the right created under sub-section (2) of Section 110. 11.Perusal of the impugned order of the Appellate Tribunal shows that it records findings of fact based on the material which was available on record. It is recorded that the inquiry with respect to live consignment is completed in May-June, 2014 when the reports were received from the laboratory. It is recorded that laboratory reports have been shown to Panch witnesses on 29th May, 2014. The Appellate Tribunal observed that the request for extension of time was ver....
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....of the expiry of the period and seeking extension of time to reply the SCN was turned down. The Hon'ble High Court has held that the department has not followed the natural justice, the writ petition was allowed. 6. In both the above judgements, the department has issued SCN even for extending the time limit for issuance of SCN under Section 110 however in the present case no SCN was issued. The department's submission is that after amendment in the Section 110, there is no need of issuance of SCN. The only requirement is that the Commissioner has to record the reason in writing while extending the time limit for issuance of SCN. We find that even the Commissioner has not recorded the reason properly in the order. However the same issue for the period even after the amendment in Section 110 has come up before the Tribunal-Delhi in the case of M/s Swees Gems & Jewellery. Vide Final Order No. 50283-50284/2019, the Tribunal after interpreting and discussing the difference in the provision of Section 110(2) before and after amendment came to the conclusion that the amendment is not such that the department is not required to issue SCN. The relevant findings of the Tribunal is as und....
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.... so as to give power to extend the period for issuing Show Cause Notice in case of seized goods by a further period of six months to case in cases where no order for provisional release of goods has been passed. We find that similar issue has been decided by the coordinate bench of this Tribunal vide Final Order No. 75047-75048/2018 dated 17.1.2019 in the case of S.R.K. Metal & Industries & Pink Commercial, wherein it is held as under: "Our attention was also drawn towards the decision of Sardar Kulwant Singh vs. Collector of Central Excise and Customs, wherein it is held that an order extending period of issue of Show Cause Notice under Section 110(2) and 124 of the Customs Act, 1962, without giving an opportunity of being heard to the affected party is illegal. Further, the requirement of issue of Show Cause Notice issued under Section 124 of the Customs Act in such a case was held to be a must relying upon the various judgments referred as above. Relying on these judgments, we find that the seized goods are required to be returned to the person from whom the seizure has been made of fact of expiry of six month under Section 110 of the Act without extension of time. Rega....
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....of the view that after amendment not only the Show Cause Notice is required to be issued by the Adjudicating Authority, but he has also to give a reasoned order after hearing the Investigation Officer and also taking view of the affected party from whom seizure has been made as his personal right is being deprived of which emanate from the Section 110(1) of the Act that entitled him to got the goods returned which has been seized from his possession. This is also cleared from statements of objects in the Finance Act as discussed above. 13. In view of above, we are of the opinion that the impugned order is in violation in this provisions of Section 110 of the Customs Act has held in the various decisions discussed above. We have also seen the note sheet order of the Ld. Commissioner in this case. It is seen from the order that the Commissioner while extending the time period has only gone by the letter of DRI and not put up to him by his office without examining the merits of the such extension and recording his own finding. His finding is only two worded finding which is 'GC issued dated 26/06/2018' Sd- M Chandra This proves that there is no inde....