TaxTMI 
TaxTMI 
2019 (8) TMI 1398
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....2 of 2017, 6863 of 2017 & 6865 of 2017 are disposed of as common issue is involved. The Writ Petitions have been filed under Article 226 of the Constitution of India seeking quashing of Show Cause Notice on the ground of jurisdiction of DRI to issue Show Cause Notice and delayed/no adjudication of impugned Show Cause Notices. 2. Civil Writ Petition No. 6862 of 2017 has been filed challenging Show Cause Notice dated 02.04.2009 (Annexure P-1), CWP No. 6863 of 2017 challenging Show Cause Notice dated 19.02.2011 (Annexure P-1) and CWP No. 6865 of 2017 challenging Show Cause Notice dated 31.03.2009 (Annexure P-1). Brief facts: 3. CWP No. 6862 of 2017 The Petitioner, resident of Ludhiana, by qualification is a Chartered Engineer. The Directorate of Revenue Intelligence (DRI) initiated an investigation against Tristar Air Conditioning Pvt. Ltd., Solan alleging mis-declaration of description of goods. The DRI after concluding investigation issued a Show Cause Notice dated 02.04.2009 (Annexure P-1) whereby Customs Duty alleging misdeclaration of description was demanded from importer and penalty under Section 112 read with Section 114AA of the Customs Act, 1962 was proposed to be im....
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....s-examination. It is apt to mention here that Respondent rejected request of Petitioner to permit cross-examination, however show cause notice was not adjudicated. The Respondent vide Notice dated 08.02.2017 (Annexure P-5) fixed the matter for personal hearing on 23.02.2017 at Amritsar. ARGUMENTS 4. Counsel for the Petitioners contended that a period of more than 7 years has expired from the date of show cause notice, however till date no adjudication order has been passed thus present Petitions are squarely covered by judgments of this Court in the case of GPI Textile Ltd. Vs. Union of India and others 2018 (362) ELT 388 (P&H) and Harkaran Dass Vedpal Vs. Union of India and Others 2019 TIOL 1591 P&H-CUS and accordingly deserve to be allowed in same terms. 5. The Counsel for the Respondents contended that Petitioners have alternative remedy to file reply and raise all pleas before the authorities, therefore, writ petitions are not maintainable. Ld. Counsel in support of his contention cited judgments in the case of Orient Ship Agency Pvt. Ltd. Vs. Commissioner of Customs 2013 (296) ELT 3 (Bom.), T.N. Krishna Iyer Vs. A.K. Baig, Asstt. Collector of Central Excise 2009 (247) EL....
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....cord as Annexure P-6) involving identical issue thus it would be profitable to reproduce relevant extracts of said judgment as below: Ratio of Division Bench Judgment in GPI Textiles 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 whether Circular No. 162/73/95-CX, dated 14-12-1995, issued by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India, is in conformity/authorized by the provisions of Se....
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.... 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 rationale, reasoning and ratio decendi remains operative. 12. Applying the ratio of the Division Bench judgment of this Court in the case of GPI Textiles Ltd. and amended Section 28 of the 1962 Act, this Court finds that ....
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....ction 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 prior to 1997-98 shall be time barred if it is framed after the expiry of 3 years from 03.03.1998 i.e. date on which limitation period was prescribed. The ratio of the judgment in Ballarpur's case was followed....
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....s, 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 justification for giving any relief to the petitioner company even after taking into account the limitation concept on the ground that the petitioner company cannot be absolved of their liability to pay purchase tax as per ....