TaxTMI 
TaxTMI 
2019 (7) TMI 1307
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....f non-edible oil which is used to manufacture soap. The Petitioners during 2003-2006 imported non-edible oil and Customs Authorities permitted clearance thereof on payment of customs duty which was assessed by Proper Officer under Section 17 read with Section 48 of the Customs Act, 1962 (for short '1962 Act'). The Directorate of Revenue Intelligence (for short 'DRI') initiated an investigation against different importers including Petitioners firms alleging mis-declaration of description and value of imported goods. It was alleged that the petitioner firms were misdeclaring the palm fatty acid distillate, palm acid oil as mixed fatty acid and mixed acid oil. The DRI after completing investigation issued Show Cause Notice dated 20.02.2009 (P-6) subject matter in CWP No. 10537 of 2011 raising a demand of short levied custom duty alongwith interest and proposing penalty against petitioner-M/s Harkaran Dass Deep Chand and one M/s Gayatri Sewa Sansthan, while issuing show cause notice dated 19.03.2009 (P-9) subject matter in CWP No. 10889 of 2015 raising a similar demand qua petitioner- M/s Harkaran Dass Vedpal. The show cause notices were issued by DRI, however, it was answerable to ....
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....g the principle of retroactive amendment laid down in Ballarpur"s case. 7. Mr. Anshuman Chopra, learned Counsel for the Respondents argued that though there was no order restraining department to pass order, however department in view of pending writ petitions and to avoid multiplicity of litigation in view of pendency of various petitions before Hon'ble Supreme Court on the issue of jurisdiction of DRI to issue show cause notice, chose to keep pending adjudication of show cause notice. He further pleaded that amended section 28(9) is not applicable in the case of Petitioners because it is prospective in nature and Explanation 4 to Section 28 specifically provides that notice issued prior to date of amendment of 2018 would be governed by old Section 28 of the Act. Department has filed SLP against judgment of this court in the case of GPI Textile and Hon'ble Supreme Court has already issued notice. 8. Before adverting to arguments of both sides, it would be profitable to notice amended and un-amended Section 28 of the Act and ratio of judgment of this Court in the case of GPI Textile (Supra). Un-amended Section 28 read as under: SECTION 28. Recovery of duties not levied or no....
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....ssible to do so, in respect of cases falling under clause (a) of sub section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under subsection( 4). (10) xxxxxxx (11) xxxxxxx Explanation 1, 2, 3 xxxxx W.e.f. 29/03/2018, Sub-section (9) of Section 28 has been amended and a new Sub-section (9A) alongwith explanation 4 has been inserted. Amended provisions are reproduced as under: (9) The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, in respect of cases falling under clause (a) of sub-section (1); (b) within one year from the date of notice, in respect of cases falling under sub-section (4). Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further perio....
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....8, then the initial period of one year for such short levied duty and interest to be determined by the proper officer shall commence from the date such reason ceases to exists. The notices issued for non levy, short levy etc., after 14.05.2015 were to be governed with the earlier provisions of Section 28 in view of Explanation 4 reproduced hereinabove. Ratio of Division Bench Judgment in GPI Textile: 9. In the case of GPI Textile, a show cause notice dated 27/12/2001 was issued under Section 11A of the Act which remained pending for adjudication till 2016 and on 3.5.2017 Respondent issued notice of hearing which came to be challenged on the ground of inordinate delay in disposal of show cause notice. This court relying upon judgment of Gujrat High Court in the case of Sidhi Syntex (P) Ltd. Vs UOI, 2017 (352) ELT 455 quashed show cause notice. The operative part of judgment reads as under: "15. The judgment of Gujarat High Court was challenged by the Revenue before Hon'ble the Supreme Court by filing Special Leave Petition (C) No. 18214 of 2017 - Union of India and Others v. M/s. Siddhi Vinavak Svntex Private Limited. in which notice has been issued only to the extent as to w....
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....he ground of jurisdiction of DRI to issue show cause notices. In the CWP No. 10889 of 2015 question of non adjudication of show cause notice was also raised. In none of writ petition, adjudication of show cause notice or its operation was stayed rather an interim order dated 01.09.2015 was passed in CWP No. 10889 of 2015 which is reproduced as under: " Adjourned to 24.9.2015. However, the Respondents may proceed with the show cause notice in the meantime. " This Court granted liberty to Respondents to proceed with Show Cause Notice, however, concededly till date impugned Show Cause Notices have not been adjudicated upon. 11. This Court while deciding GPI Textile Ltd. (Supra) noticed order passed by Hon'ble Supreme Court in SLP(C) No. 18214 of 2017 filed against Siddhi Vinayak Syntex Private Limited. The Respondent- Department/Revenue has filed SLP(C) No. 45051 of 2018 against judgment of this Court in CWP No. 10530 of 2017 (GPI Textile) and Hon'ble Supreme Court vide order dated 03.01.2019 has ordered to tag alongwith SLP(C) No. 18214 of 2017, thus argument of Respondent that their SLP is pending before Hon'ble Supreme Court cannot be accepted because the underlying rational....
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....ection (9) would be lapsing of notice, as provided in the second proviso to the Sub Section (9) of the amended Section 28 of the 1962 Act. 15. The contention of the counsel for the respondents that amended Section 28 is not applicable in the case of Petitioners deserves to be rejected because amendment is not retrospective but it is certainly retroactive. Mandatory limitation would be applicable treating pending show cause notice as if issued on 29/03/2018. The Division Bench Judgment of this Court, cited by counsel for the petitioner, in Ballarpur's case, dealt with Section 11 of the Punjab General Sales Tax Act, 1948 (for short 'PGST Act'). Under Section 11 of PGST Act, 1948, prior to 03.03.1998 no limitation period for framing assessment was prescribed and assessments for the period prior to 1998 were pending. While dealing with question of application of said limitation period of 3 years to assessment years falling prior to 1997-98 in view of the amended provision providing a three year limitation, this Court in the case of Ballarpur Industries Ltd. Vs. State of Punjab (2010) 35 PHT 5 (P&H) decided in favour of the assessee and held that assessment of any year falling p....
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....ts made by the assessing authority are not legally sustainable. It is also the admitted case of the Stat that the aforesaid findings of the Tribunal have not been challenged by the Sale Tax/Department/ Revenue. Thus, we do not consider it necessary to go into the question as to whether the amended provisions of sub section (1)(3) of Section 11 providing a period of limitation would apply to the pending assessments for the years prior to 03.03.1998 or not as even if the amended provisions are made applicable prospectively and limitation of three years is assumed to commence w.e.f. 03.03.1998, admittedly,the assessment orders dated 27.07.2001 are clearly beyond the period of limitation of three years and thus not sustainable in the eyes of law. Hence, there is no ascertainment/determination of the amount of tax due for the said two assessment years either by the assessee petitioner Company under Sub Section (4) of Section 10 or by the Assessing Authority under Section 11 of the PGST Act. Therefore, in view of the above discussions, we are of the considered opinion that the findings recorded by learned Tribunal vide its impugned order (Annexure P-15) that there exists no justificat....