TaxTMI 
TaxTMI 
2024 (11) TMI 302
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....rector of the appellant against that part of the order dated 29.06.2021 that imposes personal penalty of Rs. 20 lakhs under section 112 (a)(i) and (ii) and penalty of Rs. 10 lakhs on him under section 114 AA of the Customs Act, 1962 [the Customs Act]. 3. The sole contention that has been advanced by Shri Sudhir Malhotra, learned counsel appearing for the appellant is that the impugned order deserves to be set aside for the sole reason that even though the show cause notice was issued on 17.10.2017, it was adjudicated upon on 29.06.2021 beyond the time contemplated under section 28 (9) of the Customs Act. 4. To examine this issue, it would be relevant to refer to the relevant provision of the Customs Act. 5. Section 28(9) of the Customs Act was amended on 29.03.2018. Prior to its amendment, section 28 (9) of the Customs Act read as follows: "Section 28 (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, where it is possible 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 possibl....
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.... 29th day of March 2018, being date of commencement of the Finance Act 2018 (13 of 2018) such notice shall continue to be governed by the provision of section 28 as it stood immediately before such date." 9. The records indicate that in response to the show cause notice dated 17.10.2017, the appellant submitted an interim reply dated 07.04.2021 and contended that though section 28 (9) was amended on 29.03.2018, but it will also be applicable to show cause notices issued prior to this date and so in view of the amended provisions of section 28(9) of the Customs Act, such proceedings shall be deemed to have been concluded as if no notice has been issued since the show cause notice was not adjudicated within the stipulated time. To support this contention, the appellant placed reliance upon the judgment of the Punjab & Haryana High Court in M/s. Prabhat Fertilizers and Chemicals Works vs. Commissioner of Customs (Import), Maharashtra and others [Civil Writ Petition No. 23433 of 2019 decided on 18.12.2019]. 10. Thus, in effect, what was sought to be contended by the appellant in response to the show cause notice was that even though the show cause notice was issued on 17.10.2017,....
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....hearing on 3.6.21. In addition, the party had taken provisional release of the seized goods under section 110A of the Customs Act submitting bond, bank guarantee and cash deposit as security as per table-K of the Show Cause Notice. The importer, at time of provisional release, as per the conditions of B-11 bond, agreed to pay all dues (duty, penalty) demandable on the goods. The party never pursued to get the demands decided to discharge its bond obligation, which they had bound themselves in. 4.12 The above explains why the case could not be decided within one year of date of notice. So, the case is being adjudicated now once principles of natural justice have been followed and all respondents have gotten a chance to submit replies and have been given a personal hearing. So, the present adjudication, in terms of explanation 4 of section 28 of Customs Act 1962 read with section 28(9) of Customs Act prior to 29.3.18 is not time barred." (emphasis supplied) 12. Shri Sudhir Malhotra, learned counsel appearing for the appellant submitted that the aforesaid findings recorded by the Commissioner are perverse, for even if the unamended section 28(9) of the Customs Act....
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....ith retrospective effect from 29.03.2018. 15. What needs to be noted is that though the Explanation 4 had been substituted on 27.03.2020 and the reply was filed by the appellant on 07.04.2021, but still the appellant did not point out this substituted Explanation 4 to the Commissioner and instead made an attempt to place reliance on the judgment of the Punjab & Haryana High Court in Prabhat Fertilizers and Chemicals Works to contend that the amendment to section 28 (9) made on 29.03.2019 would apply retrospectively. 16. It needs to be noted that unamended and amended sections 28(9) of the Customs Act were examined at length by the Delhi High Court in Swatch Group India Pvt Ltd. vs. Union of India [2023 (386) ELT 356 (Del.)]. The Delhi High Court considered the decision of the Punjab & Haryana High Court in Harkaran Dass Vedpal and also the substituted Explanation 4 added on 27.02.2020 and rejected the contention about retrospectively application of the amended section 28(9) of the Customs Act. The relevant paragraphs of the judgment of the Delhi High Court are reproduced below: "28. Learned Counsel for the petitioner has vehemently contended that the amendment carrie....