TaxTMI 
TaxTMI 
2024 (12) TMI 269
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....023, 50177/2024, 50097/2024, 50102/2024, 50546/2024, 55518/2023, 50281/2024, 50268/2024, 55679/2023, 50164/2024, 50570/2024, 55188/2023, 50284/2024, 50283/2024, 55678/2023, 55410/2023, 55558/2023, 55412/2023, 53972/2023, 55571/2023 55411/2023 55067/2023, 55069/2023, 55680/2023, 55555/2023, 54690/2023, 54693/2023, 54872/2023, 55563/2023, 55682/2023, 55515/2023, 54783/2023, 55272/2023, 55163/2023, 55513/2023, 50265/2024, 50266/2024, 55557/2023, 55519/2023, 54870/2023, 55566/2023, 50594/2024, 55559/2023, 55677/2023, 55246/2023, 55270/2023, 55269/2023, 50184/2024, 50185/2024, 50183/2024, 50069/2024, 55443/2023, 50068/2024, 50066/2024, 50063/2024, 50065/2024, 55314/2023, 50171/2024, 55385/2023, 55386/2023, 50441/2024, 50187/2024, 50193/2024, 50078/2024, 55472/2023, 50005/2024, 50212/2024, 50174/2024, 55165/2023, 55166/2023, 55282/2023, 55286/2023, 55298/2023, 55283/2023, 55155/2023, 55213/2023, 55287/2023, 55297/2023, 55284/2023, 55277/2023, 55237/2023, 55252/2023, 55243/2023, 55279/2023, 55666/2023, 50278/2024, 50279/2024, 55278/2023, 55225/2023, 55421/2023, 55420/2023, 55238/2023, 55280/2023, 55244/2023, 55245/2023, 55236/2023, 55234/2023, 50135/2020, 50134/2020, 50614/2020, 50615/202....
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.... admissibility of electronic evidence; and (iii) The provisions of section 9D of the Central Excise Act relating to relevance of statements under certain circumstances were not complied with. 4. The first issue that has been raised by the learned counsel for Kopertek and the learned counsel appearing for the other appellants that the impugned orders deserve to be set aside for the sole reason that the Central Excise Officer did not determine the amount of duty of excise under sub-section (10) of section 11A within the period stipulated in sub-section (11) of section 11A shall be examined first, because in the event this issue is decided in favour of the appellants, it may not be necessary to examine the other two issues that have been raised by the learned counsel for the appellants. 5. To examine this issue, it would be appropriate to reproduce sub-sections (10) and (11) of section 11A. 6. Sub-section (10) of section 11A is as follows: "11A(10) The Central Excise Officer shall, after allowing the concerned person an opportunity of being heard, and after considering the representation, if any, made by such person, determine the amount of duty of excise du....
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....ection (5), the Central Excise Officer shall determine the amount of duty within one year from the date of notice, where it is possible to do so. The show cause notice in this appeal was issued under sub-section (4) of section 11A. Thus, the Central Excise Officer had to determine the amount of duty within one year from the date of notice, where it was possible to do so. 10. The learned authorized representative appearing for the department has, in the written submissions, provided a date and event chart regarding the proceedings undertaken by the Adjudicating Authority pursuant to the issuance of the show cause notice. It is reproduced below: Date Event 28.04.2015 Show cause notice issued requiring the noticee to show cause within 30 days, failing which the case would be decided ex-parte without any further communication. 07.09.2016 1st personal hearing fixed. Only M/s. Arihant Trading and Metals requested for supply of Relied Upon Documents 22.02.2018 Cross-examination allowed. However, none of the witness appeared 10.04.2018 Cross-examination allowed 11.04.2018 Cross-examination allowed 17.04.2018 Cross-examination allowed 20.09.20....
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....is not mandatory in nature, but is merely directory which is explicit from the use of the words "where it is possible to do so". Learned authorized representative also placed reliance upon certain decisions, to which reference shall be made at the appropriate stage. 14. Learned counsel for Kopertek, however, submitted that the department has not been able to substantiate that the Adjudicating Authority was prevented by "such circumstances or insurmountable exigencies" from concluding the adjudication proceedings within the stipulated period contemplated under sub-section (11) of section 11A. In this connection, learned counsel placed reliance upon the judgment of the Delhi High Court in Swatch Group India Pvt. Ltd. vs. Union of India 2023 (386) E.L.T. 356 (Del.), wherein the provisions of section 28 (9) of the Customs Act, 1962 [the Customs Act], which also require the proper officer to determine the amount of duty within a specified period, when it was possible to do so. Learned counsel placed reliance upon certain other decisions of High Courts, to which reference shall be made at the appropriate stage. 15. The said submissions advanced by the learned counsel for the appell....
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....ate Tribunal or the High Court or the Supreme Court; or (c) the Board has, in a similar matter, issued specific direction or order to keep such matter pending; or (d) the Settlement Commission has admitted an application made by the person concerned, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty or interest under sub-section (8) and in such case, the time specified in sub-section (9) shall apply not from the date of notice, but from the date when such reason ceases to exist" 18. In the context of the un-amended provisions of section 28 (9) of the Customs Act, which are pari materia to sub-section (11) of section 11A of the Central Excise Act, the Delhi High Court made the following observations: "31. Therefore, the question, which requires consideration now is whether in terms of erstwhile Section 28 (9) of the Customs Act, the impugned SCN dated 14-2-2018 has lapsed having not been adjudicated within the period of 12 months. In other words, whether in the facts and circumstances of the present case, it was not possible for the Revenue to adjudicate the impugned SCN within the period of 12 m....
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....teps were taken by the Department from 29-4-2019 that is the date, the Adjudicating Officer sent a letter to DRI seeking certain clarifications of the documents, and 15-10-2020 when they issued another letter granting personal hearing to the petitioners. It is, thus, admitted that the Department for almost a period of 17 months slept over the matter despite the specific mandate of even the unamended Section 28 (9) of the Customs Act that the duty shall be levied within a period of 12 months from the date of issuance of the notice. 41. It is also significant to note that the record of personal hearing dated 9-2-2021 specifically notes that the advocate appearing for the noticee had reiterated its written submissions dated February, 2019. The impugned SCN is stated to have been kept in abeyance thereafter pursuant to the circular dated 17-3-2021. 42. The respondent has merely produced various letters received from the petitioner, DRI, and others, and has contended that some adjournments were asked for by the petitioners. Admittedly, the matter was listed from time to time for a personal hearing. However, no justification has been provided as to why it was not possib....
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....nded but the same cannot provide endless time limit to the department without any plausible justification. 21. The provisions of sub-section (11) of section 11A of the Central Excise Act also came up for consideration before a Division Bench of the Punjab and Haryana High Court in GPI Textiles Limited vs. Union of India 2018 (362) E.L.T. 388 (P & H) and the relevant paragraphs are reproduced below: "17. Section 11A(11) of the Act provides that Central Excise Officer shall determine the amount of duty within six months in case notice has been under sub-section 1 thereof, whereas in the case of fraud, collusion, etc., the period prescribed is one year. No doubt, the words 'where it is possible to do so' have been used, however, that will not stretch the period to decades as is in the cases in hand. 18. In Bhatinda District Co-op. Milk P. Union Limited's case (supra), Hon'ble the Supreme Court upheld a Division Bench judgment of this Court where opinion expressed was that where no period of limitation is provided for exercise of any power, any notice issued more than five years thereafter was held to be unreasonable. 19. For the reasons mentioned above, w....
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....ernment of India v. Citedal Fine Pharmaceuticals, Madras & Ors. [(1989) 3 SCC 483 = 1989 (42) E.L.T. 515 (S.C.) = 1989 taxmann.com 618 (SC)], the Supreme Court had observed as under : "6. Learned Counsel appearing for the respondents urged that Rule 12 is unreasonable and violative of Article 14 of the Constitution, as it does not provide for any period of limitation for the recovery of duty. He urged that in the absence of any prescribed period for recovery of the duty as contemplated by Rule 12, the officer may act arbitrarily in recovering the amount after lapse of long period of time. We find no substance in the submission. While it is true that Rule 12 does not prescribe any period within which recovery of any duty as contemplated by the Rule is to be made, but that by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period, would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be o....
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....e playing with the public revenue. In such context, in our decision in Coventry Estates Pvt. Ltd. v. Joint Commissioner CGST and Central Excise & Anr. [Writ Petition No. 4082 of 2022, decided on 25 July, 2023] [(2023) 10 Centax 38 (Bom.)] which concerned delayed adjudication of a show cause notice, considering the binding statutory provisions, we have observed that such lethargic approach of the concerned officer not to adjudicate show cause notice within the time-frame as prescribed by law, would be an action on the part of the concerned officer contrary to law, who cannot be expected to violate the mandate of law. As such issues vitally affect the public revenue, we also observed that such inaction on the part of such officers would adversely affect the interest of the revenue. We also observed that if prompt adjudication of the show cause notice is not undertaken, such lapse of time and certainly a long lapse of time is likely to cause irreversible changes frustrating the whole adjudication.***** ***** 17. In our opinion, even in absence of the provisions of sub-section (4)(B) of Section 73, respondent No. 2 could not have acted oblivious to the settled princip....
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....) or the proviso to sub-section (4A). ***** It is hence submitted that by no stretch of imagination, in the absence of any justifiable reason, the show cause notice can be adjudicated after a long delay of 10 years. In support of such contention, Mr. Raichandani has placed reliance on the decision of a co-ordinate Bench of this Court in ATA Freight Line (I) Pvt. Ltd. vs. Union of India & Ors. [Writ Petition No. 3671 of 2022], against which Special Leave Petition (Civil) Diary No. 828 of 2023 filed by the Union of India came to be dismissed; in CMA-CGM Agencies (India) Pvt. Ltd. vs. Union of India & Ors. [Writ Petition No. 1313 of 2021]; decision of this Court in Shreenathji Logistics vs. Union of India & Ors. [Writ Petition No. 540 of 2020]; in Sushitex Exports (India) Ltd. & Ors. vs. Union of India & Anr. [2022 SCC Online Bom 191]; in Sanghvi Reconditioners Pvt. Ltd. vs. Union of India, through the Secretary, Department of Revenue & Ors. [2017 SCC Online Bom 9781]; in Reliance Industries Ltd. vs. Union of India [2019 (368) E.L.T. 854 (Bom.)] and in Parle International Ltd. vs. Union of India [2021 (375) E.L.T. 633 (Bom.)]. 9. Mr. Raichandani would submit that all these de....
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....tice. We are not shown any provision, which in any manner would permit any authority to condone such inordinate delay on the part of the adjudicating officer to adjudicate show cause notice. There can be none, as the legislature has clearly intended to avoid uncertainty, which otherwise can emerge. Thus, what would become applicable are the settled principles of law as laid down in catena of judgments, that the period within which such adjudication should happen is as mandated by law and in any case it needs to be done within a reasonable period from the issuance of the show cause notice. Further, whether such period is a reasonable period would depend upon the facts and circumstances of each case. 18. An inordinate delay is seriously prejudicial to the assessee and the law itself would manifest to weed out any uncertainty on adjudication of a show cause notice, and that too keeping the same pending for such a long period itself is not what is conducive. 19. It is well said that time and tide wait for none. It cannot be overlooked that the pendency of show cause notice not only weighs against the legal rights and interest of the assessee, but also, in a given situ....
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....o adjudicate it within the said time limit. The time limit period cannot be extended endlessly without any plausible justification; (iv) The indifference of the Adjudicating Authority to complete the adjudicating process within the statutory time limit cannot be condoned to the detriment of the assessee or detrimental to the interest of the exchequer; (v) There is a definite purpose and intention of the legislature to prescribe such time limit. The legislature has clearly intended to avoid uncertainly, which otherwise can emerge; and (vi) Even if no time limit is prescribed for adjudication of a show cause notice, then too the adjudication has to be done within a reasonable period. However, what would be a reasonable period would depend upon the nature of the Statute, rights and liabilities thereunder and other relevant factors. 26. It is in the light of the aforesaid principles that the facts of the appeal would have to be examined. 27. The show cause notice, in the present case, was issued on 28.04.2015. It called upon the noticees to show cause within thirty days from the date of receipt of notice, failing which it was specifically provided that ....
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....it provided to it under a Statute to adjudicate the show cause notice. 29. Learned authorized representative appearing for the department only submitted that the delay occurred on account of the appellant as the appellant did not file a reply to the show cause notice within the period of one month stipulated in the show cause notice and, in fact, no reply was filed till 07.09.2016, which was the date fixed for hearing by the Adjudicating Authority. In this connection, learned authorized representative appearing for the department not only placed reliance upon section 33A of the Central Excise Act, but also contended that since the Adjudicating Authority is required to strictly adhere to the principles of natural justice that require adequate opportunities to be given to the noticees before the adjudicating the show cause notice the Adjudicating Authority was justified in granting time to the noticees to cross-examine and also provide adequate personal hearing. 30. It is not possible to accept this contention of the learned authorized representative appearing for the department. 31. The principles of natural justice do not admit of such delayed adjudication where time limit....
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....these judgments. 34. In Conybio Healthcare, the Madras High Court held that the time limit prescribed under sub-section (9) of section 28 of the Customs Act is elastic and not rigid. This decision would have to be examined in the light of the limitations placed upon extension of the time period by various decisions of the High Courts referred to above. 35. In Bhagsons Paint, the Supreme Court held that there is no statutory bar to adjudicate the matter even after nine lapse of nine years after issue of the show cause notice. In a subsequent judgment rendered in Citedal Fine and Bhatinda District, the Supreme Court held that even when no time limit is prescribed, it does not mean that the show cause notice has not to be adjudicated within a reasonable period of time. These two judgments of the Supreme Court have been followed by the Delhi High Court in Nanu Ram. The Bombay High Court in UPL and Coventry Estates also held that even when no time period is prescribed for adjudication of a show cause notice, the same has to be adjudicated within a reasonable period of time. 36. In Maggie Marketing, the main contention advanced by the learned counsel for the appellant was regard....
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.... in Swatch Group was examined in connection with this contention advanced on behalf of the appellant regarding retrospective amendment of section 28 (9) of the Customs Act. 39. In respect of the unamended provision of section 28 (9) of the Customs Act, the Division Bench found that due to Covid restrictions and the fact that the show cause notice was not served that it was not possible to adjudicate the show cause notice within the time stipulated. 40. The facts of each case have to examined to find out whether there were circumstances or insurmountable exigencies which made it impracticable for the adjudication to take place, as has been held by the Delhi High Court in Swatch Group. 41. The decisions relied upon by learned authorized representative appearing for the department, therefore, do not help the department. 42. The aforesaid discussion would lead to the inevitable conclusion that the impugned order would have to be set aside only for the reason that the adjudication was not completed within the time limit prescribed under sub-section (11) of section 11A of the Central Excise Act. 43. It would, therefore, not be necessary to examine the other two contentions....
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....7 E/55167/2023 27.05.2016 25.04.2022 28 E/55567/2023 11.11.2016 28.03.2022 29 E/55564/2023 30.05.2016 30.03.2022 30 E/55315/2023 27.12.2016 30.06.2022 31 E/55565/2023 25.04.2017 28.04.2022 32 E/55316/2023 09.02.2016 30.06.2022 33 E/55669/2023 31.03.2017 29.04.2022 34 E/55570/2023 25.04.2017 30.06.2022 35 E/55235/2023 30.03.2016 28.06.2022 36 E/55679/2023 31.03.2016 11.05.2022 37 E/55678/2023 29.06.2016 30.05.2022 38 E/55558/2023 31.10.2016 31.03.2022 39 E/55571/2023 17.02.2017 31.05.2022 40 E/55680/2023 30.11.2016 27.06.2022 41 E/55682/2023 30.03.2017 31.05.2022 42 E/55557/2023 30.03.2017 07.07.2022 43 E/55566/2023 08.04.2016 20.04.2022 44 E/55677/2023 31.05.2017 30.03.2022 45 E/50185/2024 30.03.2017 18.07.2022 46 E/50069/2024 17.02.2017 31.08.2022 47 E/50063/2024 11.11.2016 31.05.2022 48 E/55314/2023 27.12.2016 30.06.2022 49 E/50187/2024 10.02.2016 30.06.2022 50 E/55237/2023 30.11.2016 30.06.2022 5....
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....9 E/50174/2024 01.05.2017 31.05.2022 100 E/55298/2023 30.03.2017 30.06.2022 101 E/55213/2023 29.03.2017 28.02.2022 102 E/55297/2023 30.03.2017 28.06.2022 103 E/55666/2023 30.03.2017 30.06.2022 104 E/55225/2023 27.12.2016 29.06.2022 105 E/55280/2023 29.03.2017 21.07.2022 106 E/55234/2023 01.05.2017 20.06.2022 107 E/50085/2024 30.03.2017 31.05.2022 108 E/50077/2024 27.12.2016 30.06.2022 109 E/50222/2024 30.03.2017 30.09.2022 110 E/50226/2024 17.02.2017 30.11.2022 111 E/50223/2024 27.12.2016 30.11.2022 112 E/50225/2024 27.12.2016 30.11.2022 113 E/50356/2024 27.12.2016 16.01.2023 114 E/50217/2024 31.03.2017 29.04.2022 115 E/55158/2023 25.04.2017 29.04.2022 116 E/50164/2024 31.03.2016 11.05.2022 117 E/55443/2023 17.02.2017 31.08.2022 118 E/50212/2024 01.05.2017 31.05.2022 119 E/50359/2024 27.12.2016 30.11.2022 120 E/50363/2024 14.12.2016 10.02.2023 121 E/50365/2024 27.12.2016 30.11.2022 122 E/50357/2024 10.05.....