TaxTMI 
TaxTMI 
2024 (12) TMI 624
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....15971/2023 & CM APPL. 64259/2023 (Stay), - -<br>Customs<br>HON'BLE MR. JUSTICE YASHWANT VARMA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA W.P.(C) 4831/2021, W.P.(C) 4832/2021, W.P.(C) 15202/2023 & CM APPL. 60768/2023 (Stay), W.P.(C) 6193/2021, W.P.(C) 3147/2023, W.P.(C) 10289/2023 & CM APPL. 22837/2024 (Stay), W.P.(C) 12425/2023 & CM APPL. 49000/2023 (Stay), W.P.(C) 13509/2023 & CM APPL. 64301/2023 (Stay), W.P.(C) 15971/2023 & CM APPL. 64259/2023 (Stay), W.P.(C) 16126/2023 & CM APPL. 64821/2023 (Stay), W.P.(C) 16163/2023 & CM APPL. 65012/2023 (Stay), W.P.(C) 6146/2024 & CM APPL. 25563/2024 (Stay), W.P.(C) 16193/2023 & CM APPL. 65092/2023 (Stay), W.P.(C) 3705/2024, W.P.(C) 3737/2024, W.P.(C) 3753/2024, W.P.(C) 3755/2024, W.P.(C) 3865/2024 & CM APPL. 15953/2024 (Stay) & CM APPL.46437/2024 (18 Days Delay in C.A.), W.P.(C) 3866/2024, W.P.(C) 3867/2024, W.P.(C) 3868/2024, W.P.(C) 3872/2024, W.P.(C) 3875/2024, W.P.(C) 3877/2024, W.P.(C) 3881/2024 & CM APPL. 15994/2024 (Stay), 46457/2024 (delay of 19 days in filing the counter affidavit), W.P.(C) 3885/2024, W.P.(C) 3933/2024, W.P.(C) 3934/2024, W.P.(C) 3935/2024, W.P.(C) 5529/2024 & CM APPL. 22745/2024 (Stay), W.P.(C) 5767/2024 & C....
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....sioner Of Customs Import & Anr., Commissioner, Central Goods And Services Tax Audit-II, Delhi, Commissioner of CGST And Central Excise, Principal Commissioner Inland Container & Anr. For the Petitioner Through: Mr. Prem Ranjan Kumar, and Ms. Poojan Malhotra, Advocates., Mr. Sunil Dalal, Sr. Adv. with Ms. Shikha Sapra, Mr. Piyush Kumar, Ms. Reena Rawat, Mr. Nikhil Beniwal, Mr. Navish Bhati, Mr. Mahabir Singh, Mr. Archit Jindal and Mr. Akash Gupta, Advs., Mr. V.V. Gautam, Ms. Nitu Barik, Ms. Priya Bhatia, Advs. Dr. Prabhat Kumar and Mr. Karan Kanwal, Advs., Mr. T.P.S. Kang, Md. Zunaid and Mr. Mohek Gupta, Advs. Mr. Arjun Raghavendra and Mr. Piyush Deshpande, Advs., Mr. Deepak Gandhi, Mr. Sumit Kumar Jha and Mr. Ricky Chaudhary, Advs., Mr. J.K. Mittal, Ms. Vandana Mittal and Mr. Mukesh Chaudhary, Advs., Mr. Ravi Kant Chandok, Mr. Umesh Sarwal, Mr. Vasudev Lalvani, Mr. Tushar Sahni and Mr. Siddharth Sarwal, Advs., Mr. Sparsh Bhargava, Ms. Ishita Farsaiya and Ms. Vanshika Taneja, Advs., Mr. Abhas Mishra and Ms. Neha Singhal, Advs. Mr. A.K. Prasad, Mr. K.K. Anand, Ms. Surabhi Sinha, Mr. Prem Ranjan, Ms. Aakriti Anand and Ms. Sweety Gangmei, Advs., Mr. Tarun Gulati, Sr. Adv. with Ms. S....
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.... assailed. 2. The principal ground of attack is the inordinate delay in the finalisation of the adjudication proceedings with the writ petitioners contending that the failure on the part of the respondents to conclude adjudication within a reasonable period of time and inordinately delaying the same for decades together would constitute a sufficient ground to annul those proceedings. They would contend that the principles of a 'reasonable period' which courts have propounded in connection with an adjudicatory function conferred upon an authority would apply and the impugned SCNs' and orders are liable to be quashed on this short score alone. 3. Insofar as the writ petitions pertaining to the Customs Act are concerned, the petitioners also seek to draw sustenance from certain statutory amendments that came to be introduced by virtue of Finance Act, 2018 [2018 Act] and in terms of which the phrase "where it is possible to do so", as previously occurring in Section 28 (9) came to be omitted. The 2018 Act also saw the insertion of a Second Proviso to Section 28 (9) and which provided that in case of a failure to conclude adjudication proceedings even within the extended period, w....
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....Section 28 (11) had come to be introduced in the Customs Act. While we shall have an occasion to deal with the aforenoted judgments as well as the statutory amendments which came to be introduced in the latter part of this decision, suffice it to note that according to the respondents, the delay in adjudication was neither deliberate nor designed. According to them, it was the aforementioned intervening factors that led to the SCN proceedings not being concluded with desired expedition. II. THE STATUTORY FRAMEWORK 8. Having broadly noticed the principal submissions which were addressed by respective sides, this would constitute an appropriate juncture to notice the salient provisions of the three principal statutes with which the impugned adjudication proceedings are concerned. 9. Insofar as the Customs Act is concerned, while undisputedly the exporter or the importer, as the case may be, stands enabled to follow the route of self-assessment and declaration, those once endorsed are undoubtedly liable to be viewed as having been duly assessed in accordance with the provisions of that statute. Section 28 of the Customs Act is concerned with duties and interest that may have ....
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.... officer is of the opinion that the amount of duty along with interest payable thereon under Section 28-AA or the amount of interest, as the case may be, as specified in the notice, has been paid in full within thirty days from the date of receipt of the notice, no penalty shall be levied and the proceedings against such person or other persons to whom the said notice is served under clause (a) of sub-section (1) shall be deemed to be concluded.] (3) Where the proper officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of [two years] shall be computed from the date of receipt of information under sub-section (2). (4) Where any duty has not been [levied or not paid or has been short-levied or short-paid] or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of,- (a) collusion; or (b) any wilful ....
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....receipt of information under sub-section (5). (7) In computing the period of [two years] referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), the period during which there was any stay by an order of a court or tribunal in respect of payment of such duty or interest shall be excluded. [(7-A) Save as otherwise provided in clause (a) of sub-section (1) or in sub-section (4), the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed, and the provisions of this section shall apply to such supplementary notice as if it was issued under the said sub-section (1) or sub-section (4).] (8) The proper 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 or interest due from such person not being in excess of the amount specified in the notice. (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 cla....
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....ixed by the Central Government under Section 28-AA, from the date of refund up to the date of recovery, as a sum due to the Government. (10-B) A notice issued under sub-section (4) shall be deemed to have been issued under sub-section (1), if such notice demanding duty is held not sustainable in any proceeding under this Act, including at any stage of appeal, for the reason that the charges of collusion or any wilful mis-statement or suppression of facts to evade duty has not been established against the person to whom such notice was issued and the amount of duty and the interest thereon shall be computed accordingly.] [(11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as Officers of Customs under sub-section (1) of Section 4 before the 6th day of July, 2011, shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section.] Explanation 1.-For the purposes of this section, "relevant date" means,- (a) in a case where d....
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....s to form the opinion that duty or interest leviable has either not been levied or paid, escaped an accurate assessment as also cases where a refund may have come to be incorrectly granted. In such an eventuality, the provision places the proper officer under the obligation to issue notice to the exporter or the importer to show cause why the duty or interest leviable should not be recovered. The adjudicatory process which comes to be initiated culminates in a determination of the duty leviable and recovered in accordance with the Section 28(3) and in terms of which the proper officer would compute the amount of duty or interest, which according to it, had either escaped being levied or had been short-levied or short-paid. 11. Section 28, by virtue of sub-section (4), thereafter proceeds to construct and lay in place a similar procedure where the allegation of duty having escaped levy or having been short-levied, short-paid or erroneously refunded, occurred by virtue of collusion, wilful misstatement or suppression of facts. Hereto, the proper officer, upon formation of an opinion that sub-section (4) would be attracted, is obliged to issue a notice calling upon the importer or ....
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....CBIC] which was earlier known as the Central Board of Excise and Customs [Board/CBEC] having issued a direction or order to keep proceedings of adjudication in abeyance as well as where the Settlement Commission may have admitted an application made by an exporter or the importer. 15. Reverting then to the principal provision we take note of Explanation 2 and which provides that all cases of non-levy, short-levy or erroneous refund, pertaining to a period prior to the date when Finance Bill, 2011 received the assent of the President, would be governed by Section 28 as it stood before the date on which such assent was received. Of equal significance is Explanation 4, and which prior to the shape in which it exists presently in the statute and prior to the introduction of amendments by virtue of the Finance Act, 2020 [2020 Act], had read as follows: "Explanation 4.-For the removal of doubts, it is hereby declared that in cases where notice has been issued for non-levy, not paid, short-levy or short-paid or erroneous refund after the 14th day of May, 2015, but before the date on which the Finance Bill, 2018 receives the assent of the President, they shall continue to be go....
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.... Central Excise Officer may serve, subsequent to any notice or notices served under that sub-section, a statement, containing the details of service tax not levied or paid or short levied or short paid or erroneously refunded for the subsequent period, on the person chargeable to service tax, then, service of such statement shall be deemed to be service of notice on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices.] [(1-B) Notwithstanding anything contained in sub-section (1), in a case where the amount of service tax payable has been self-assessed in the return furnished under sub-section (1) of Section 70, but not paid either in full or in part, the same shall be recovered along with interest thereon in any of the modes specified in Section 87, without service of notice under sub-section (1).] (2) The [Central Excise Officer] shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specifie....
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....ficer], but for this sub-section. [Explanation-2.-For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon.] (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this chapter or of the rules made thereunder with intent to evade payment of service tax. (4-A) [* * *] [(4-B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- (a) within six months from the date of notice where it is possible to do so, in respect of cases [falling under] 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 the proviso to sub-section (1) or the provis....
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....een paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under Section 50 and a penalty leviable under the provisions of this Act or the rules made thereunder. (2) The proper officer shall issue the notice under sub-section (1) at least three months prior to the time limit specified in sub-section (10) for issuance of order. (3) Where a notice has been issued for any period under sub-section (1), the proper officer may serve a statement, containing the details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for such periods other than those covered under sub-section (1), on the person chargeable with tax. ....
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....ax has not been paid within a period of thirty days from the due date of payment of such tax. [(12) The provisions of this section shall be applicable for determination of tax pertaining to the period up to Financial Year 2023-24.] xxxx xxxx xxxx 74. Determination of tax [,pertaining to the period up to Financial Year 2023-24,] not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful-misstatement or suppression of facts.-(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under Section 50 and a penalty equivalent to the tax specified in the....
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....The proper officer shall issue the order under sub-section (9) within a period of five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years from the date of erroneous refund. (11) Where any person served with an order issued under sub-section (9) pays the tax along with interest payable thereon under Section 50 and a penalty equivalent to fifty per cent. of such tax within thirty days of communication of the order, all proceedings in respect of the said notice shall be deemed to be concluded. [(12) The provisions of this section shall be applicable for determination of tax pertaining to the period up to Financial Year 2023-24.] Explanation 1.-For the purposes of Section 73 and this section,- (i) the expression "all proceedings in respect of the said notice" shall not include proceedings under Section 132; (ii) where the notice under the same proceedings is issued to the main person liable to pay tax and some other persons, and such proceedings against the main person have been concluded under S....
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....ling on that issue, the Supreme Court in Sayed Ali held that on a conjoint reading of Sections 2 (34) and 28 of the Customs Act, only a customs officer who may have been assigned the function of assessment in respect of entities falling in a particular jurisdictional area could be viewed as competent to issue notice and undertake an adjudication. The Supreme Court also negated the Revenue's contention that once territorial jurisdiction had come to be conferred upon the Commissioner of Customs (Preventive), the said authority would be liable to be treated as a "proper officer" for purposes of Section 28. This becomes evident from a reading of the following paragraphs of Sayed Ali: "20. From a conjoint reading of Sections 2 (34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2 (34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2 (34) of t....
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....tion 28 (4) is by the same authority and not by any superior authority such as appellate or revisional authority. It is, therefore, clear to us that the Additional Director General of DRI was not "the" proper officer to exercise the power under Section 28 (4) and the initiation of the recovery proceedings in the present case is without any jurisdiction and liable to be set aside. 17. At this stage, we must also examine whether the Additional Director General of the DRI who issued the recovery notice under Section 28 (4) was even a proper officer. The Additional Director General can be considered to be a proper officer only if it is shown that he was a Customs Officer under the Customs Act. In addition, that he was entrusted with the functions of the proper officer under Section 6 of the Customs Act. The Additional Director General of the DRI can be considered to be a Customs Officer only if he is shown to have been appointed as Customs Officer under the Customs Act. xxxx xxxx xxxx 23. If it was intended that officers of the Directorate of Revenue Intelligence who are officers of the Central Government should be entrusted with functions of the Customs Offi....
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....es is as under : (i) Section 28 (11) states that all persons appointed as customs officers prior to July 6, 2011 will be deemed to always have had the power of assessment under section 17 and shall be deemed to always have been "proper officers". Further, this is notwithstanding anything to the contrary in any judgment, decree or order of any court of law. While the said provision is intended to overcome the defect pointed out in the decision of the Supreme Court in Sayed Ali [2011] 7 GSTR 338 (SC), section 28 (11) of the Act does not state that it would operate notwithstanding anything contained either in the Act or any other Act for the time being in force. In other words, the Legislature has not made it explicit that section 28 (11) would prevail notwithstanding anything contained in Explanation 2 to section 28 of the Act. (ii) On the contrary, Explanation 2 which, as it presently stands, appears after section 28 (11) of the Act as already stood enacted with effect from April 8, 2011 opens with the words "for the removal of doubts". It is made clear that non-levy, short-levy or erroneous refund prior to April 8, 2011 would be governed by section 28 "as it stood....
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....cers" under section 2 (34) of the Act. The even more serious problem is the impossibility of reconciling two contradictory provisions, viz., Explanation 2 to section 28 and section 28 (11) of the Act. 67. The words "this section" in the newly inserted sub-section (11) of section 28 obviously refers to section 28 as enacted with effect from April 8, 2011 and not section 28 which existed prior to that date. The effect of section 28 (11) is to treat all officers of the customs to be "proper officers" only for the purposes of new section 28 of the Act and not the earlier section 28 of the Act. In particular, there is no validation of the show-cause notices issued prior to the amendment of section 28 of the Act. As observed in Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan (1962) 2 SCC 449 a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. The past actions of the officers of the Directorate of Revenue Intelligence and Directorate General of Central Excise Intelligence who are not designated as "proper officer" in issuing show-cause notices for the period prior to April 8, 2011 have not been validated. 68. The....
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....8 of the Act. Section 28 (11) interpreted in the above terms would not suffer the vice of unconstitutionality. Else, it would grant wide powers of assessment and enforcement to a wide range of officers, not limited to customs officers, without any limits as to territorial and subject matter jurisdiction and in such event the provision would be vulnerable to being declared unconstitutional. As regards the period subsequent to April 8, 2011, it is evident that if the administrative chaos as envisaged by the Supreme Court in Sayed Ali [2011] 7 GSTR 338 (SC) should not come about, there cannot be any duplicating and/or overlapping of jurisdiction of the officers. It would have to be ensured through proper co-ordination and administrative instructions issued by the Central Board of Excise and Customs that once a show-cause notice is issued specifying the adjudicating officer to whom it is answerable, then that adjudication officer, subject to such officer being a "proper officer" to whom the function of assessment has been assigned in terms of section 2 (34) of the Act, will alone proceed to adjudicate the show-cause notice to the exclusion of all other officers who ma....
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....ction 28 in accordance with Section 6, they did not possess the jurisdiction to issue show cause notices for the recovery of duty under Section 28 of the Act, 1962. c. The reliance placed in Canon India (supra) on the decision in Sayed Ali (supra) is misplaced for two reasons - first, Sayed Ali (supra) dealt with the case of officers of customs (Preventive), who, on the date of the decision in Sayed Ali (supra) were not empowered to issue show cause notices under Section 28 of the Act, 1962 unlike the officers of DRI; and secondly, the decision in Sayed Ali (supra) took into consideration Section 17 of the Act, 1962 as it stood prior to its amendment by the Finance Act, 2011. However, the assessment orders, in respect of which the show cause notices under challenge in Canon India (supra) were issued, were passed under Section 17 of the Act, 1962 as amended by the Finance Act, 2011. (iii) This Court in Canon India (supra) based its judgment on two grounds : (1) the show cause notices issued by the DRI officers were invalid for want of jurisdiction; and (2) the show cause notices were issued after the expiry of the prescribed limitation period. In the present judgme....
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....rify that the findings in respect of the vires of the Finance Act, 2022 is confined only to the questions raised in the petition seeking review of the judgment in Canon India (supra). The challenge to the Finance Act, 2022 on grounds other than those dealt with herein, if any, are kept open. (vi) Subject to the observations made in this judgment, the officers of Directorate of Revenue Intelligence, Commissionerates of Customs (Preventive), Directorate General of Central Excise Intelligence and Commissionerates of Central Excise and other similarly situated officers are proper officers for the purposes of Section 28 and are competent to issue show cause notice thereunder. Therefore, any challenge made to the maintainability of such show cause notices issued by this particular class of officers, on the ground of want of jurisdiction for not being the proper officer, which remain pending before various forums, shall now be dealt with in the following manner: a. Where the show cause notices issued under Section 28 of the Act, 1962 have been challenged before the High Courts directly by way of a writ petition, the respective High Court shall dispose of such writ petiti....
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....he show cause notices having been issued beyond the limitation period remain undisturbed. 170. We set aside the decision of the High Court of Delhi rendered in the case of Mangali Impex (supra) and uphold the view taken by the High Court of Bombay in the case of Sunil Gupta (supra). We also uphold the constitutional validity of Section 97 of the Finance Act, 2022." 27. It is the decision rendered in Canon II on 07 November 2024 which appears to have conclusively settled the dispute which had festered from the time when the Supreme Court had handed down its judgment in Sayed Ali. The confusion that prevailed with respect to the authority of the DRI or officers attached to the Preventive Division to undertake an adjudication owed its genesis to the judgment and thus started on 18 February 2011 when judgment came to be pronounced in Sayed Ali that was perpetuated by Mangali Impex on 03 May 2016 and continued by Canon I judgment whereon was pronounced on 09 March 2021. The confusion that had prevailed ultimately came to be dispelled and laid to rest when the review petition came to be allowed by the Supreme Court in Canon II. 28. From the details which have been provided....
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....Notices issued prior to issuance of Notification dated 6-7-2011. Since the order dated 3-5-2016 of High Court of Delhi challenges the constitutional validity of sub-section (11) of section 28 of the Customs Act, 1962, the Board has decided to file an SLP in the case i.e. W.P. No. 441/2013 before the Hon'ble Supreme Court. 3. In view of the above, field formations are requested to transfer all the SCNs issued by DRI, DGCEI, SIIB, Preventive prior to 6-7-2011 and which are pending adjudication to the Call Book, till disposal of the matter in the Supreme Court. 4. Difficulties faced, if any, in implementation of this Circular may be brought to the notice of the Board." 29. By way of exemplar, we also extract an instruction dated 17 March 2021 as issued by the Board hereinbelow: "Instruction No. 04/20221-Customs F. No.450/72/2021-Cus-IV Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs Xxxxxx Room No.227B, North Block, New Delhi Dated the 17th of March, 2021. To Principal Additional Director General, Directorate General of Intelligence (DRI), New Delhi.....
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....d chart that sought to encapsulate the different stages of proceedings in respect of each of the writ petitioners commencing from the issuance of the original SCN, transfer to the call book and the passing of final orders in some of those cases. The consolidated chart is adopted and made part of this judgment as Appendix-A. 31. From the facts which can be gleaned from W.P.(C) 16163/2023, the following position emerges. The SCN in that matter came to be issued originally on 22 December 2006. According to the respondents, on 29 June 2016 the said proceedings were transferred to the call book on the basis of the instructions issued by the Board and which in turn was based on the judgment which had by then come to be pronounced in Mangali Impex. The SCN is thereafter stated to have been taken out from the call book on 03 January 2017 pursuant to the Board's Instructions which were issued on the same date. It thereafter came to be transferred back to the call book on 03 November 2017 pursuant to directives of the Board and retrieved therefrom on 03 May 2019. On 17 March 2021, the SCN was again transferred to the call book for a third time and taken out on 09 April 2022, pursuant to S....
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....l it was taken out on 03 May 2019 and placed yet again in that book on 17 March 2021. Pursuant to the 2022 Act, it was finally taken out of the call book on 01 April 2022. 35. The cases of W.P.(C) Nos. 3737/2024, 3753/2024 and 3755/2024 wherein final adjudication orders have come to be passed follow an identical route. However, the respondents have abjectly failed to provide any explanation for the period between 2009 when the SCN was originally issued and 2016, when it was placed in the call book for the first time. 36. A stark example of a failure to conclude the adjudicatory process with expedition is represented by W.P.(C) 5896/2024. Proceedings in this case commenced pursuant to the issuance of a SCN on 23 December 2006 and saw the passing of a final order on 08 February 2024. According to the respondents, although approximately 80 dates of personal hearing are stated to have been fixed between 2008 to 2023, the noticees regularly sought adjournment on one pretext or another and failed to appear and participate in the hearings. However, we find that in this particular case, although the proceedings stood transferred to the call book on only one occasion, the respondents ....
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....order has come to be passed on 28 March 2024. The personal hearing dates relevant to this case are stated to be 25 April 2018 and 24 January 2024. From the disclosures made by the respondents in connection with this case, we yet again find no explanation provided for the inaction during the period between 2012 and 2018. Yet another case emanating from the 1994 Act is W.P.(C) 6147/2024, where the SCN was issued on 26 October 2018 and the proceedings finalized in terms of an order passed on 28 March 2024. In this particular case, the proceedings were never transferred to the call book. 40. While noticing matters arising out of the 1994 Act, we also deem it apposite to take note of the facts as they obtain in W.P.(C) 6429/2024 wherein although the SCN was issued on 20 March 2020, a final order came to be passed only on 16 January 2024. Although the proceedings pertaining to this particular assessee were never placed in the call book, the respondents assert that delay was caused on account of the outbreak of the Covid-19 pandemic. They would additionally contend that Section 73 (4B) of the 1994 Act is liable to be viewed as being directory since it adopts the expression "where it is....
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....ing was issued. It was further contended that this was a procedural aspect and should not be a ground for setting aside adjudication proceedings. In the above backdrop this court held as follows : "15. With the assistance of Mr. Raichandani and Mr. Jetly, we have perused the petition and the annexures thereto. We have also perused the consistent view taken by this court, based on which the judgment in the case of Lanvin Synthetics P. Ltd. (2015) 322 ELT 429 (Bom) was rendered. The obligation on the respondents to adjudicate the show-cause notices with expediency has been repeatedly emphasized. The decisions in the cases of Shirish Harshavadan Shah v. Deputy Director, E. D. (2010) 254 ELT 259 (Bom) and Cambata Indus. P. Ltd. v. Additional Dir. of Enforcement (2010) 254 ELT 269 (Bom) underline as to how show-cause notices issued decades back cannot be allowed to be adjudicated by the Revenue merely because there is no period of limitation prescribed in the statute to complete such proceedings. The adjudication proceedings serve a definite purpose. The object is to secure and recover public revenue. The larger public interest therefore requires that the Revenue and its offici....
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....ve allegedly violated the provisions of law. However, the affidavit proceeds to state that there was a personal hearing held on March 25, 2004. A written brief was submitted by the petitioners and they relied upon the order of the Customs, Excise and Service Tax Appellate Tribunal in the case of A. S. Moloobhoy and Sons (supra). However, the Revenue found that there were adjournments sought but in the meanwhile, the Department/Revenue challenged the judgment of the Customs, Excise and Service Tax Appellate Tribunal in the case of A. S. Moloobhoy and Sons (2003) 162 ELT 196 (Bom) in the Supreme Court of India. Thereupon, all the matters were sent in the dormant list/call book. It may be a procedural aspect for the Department/Revenue. Unless and until the Revenue establishes that there is a law mandating taking cognizance of these procedural requirements or these procedural requirements have been engrafted into the applicable legislation so as to enable the Revenue/Department to seek extension of time, in writ jurisdiction, we are not obliged to take notice of these procedural delays at the end of the Revenue/Department. Accepting that case would defeat the rule of law itself. That w....
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....f limitation prescribed in the statute to complete such proceedings. Larger public interest requires that the Revenue should adjudicate the show-cause notice expeditiously and within a reasonable period. What would be the reasonable period would depend upon the facts and circumstances of each case but certainly a period of 13 years cannot be termed as a reasonable period. Secondly, regarding keeping the show-cause notice in the dormant list or the call book, this court held that such a plea cannot be allowed or condoned by the writ court to justify inordinate delay at the hands of the Revenue. To accept such a contention would defeat the rule of law itself. Taking cognizance of such an aspect would amount to giving credence to extraneous matters. In any case such a procedure internally adopted by the respondents is not binding on the court. 22. This position has been reiterated by this court in Raymond Ltd. v. Union of India (2019) 368 ELT 481 (Bom). That was a case where show-cause notices were issued during the period 2001 to 2004. Adjudication proceedings were sought to be commenced after 14 to 17 years. Again the show-cause notices were kept in dormant list/call book, ....
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....e that the show-cause notice is still alive and is only kept in abeyance. Therefore, the party can then safeguard its evidence, till the show-cause notice is taken up for adjudication. Secondly, if the notices are being kept in the call book for some reason, the party gets an opportunity to point to the Revenue that the reasons for keeping it in call book are not correct and the notices could be adjudicated upon immediately. This is the transparent manner in which the State administration must function. 10. In fact, we note that the above manner of functioning is the objective of the State administration, as our attention has been drawn to the C. B. E. and C. Circular No. 1053/2017-CX., dated March 10, 2017*. In paragraph 9.4 of the above circular of the C. B. E. and C. has directed the officers of the Department to formally communicate to the party that the notices which have been issued to them, are being transferred to the call book. This would be expected of the State even in the absence of the above circular ; the circular only states the obvious. In this case, the show-cause notices were kept in the call book not at the instance of petitioner, but by the Revenue of i....
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....olly attributable to the Revenue would be in contravention of procedural fairness and thus violative of the principles of natural justice. An action which is unfair and in violation of the principles of natural justice cannot be sustained. Sudden resurrection of the show-cause notices after 13 years, therefore, cannot be justified. 24. There is one more aspect which we would like to point out. The respondents had not taken any action pursuant to the show-cause notices for long 13 years till issuance of notice for personal hearing on August 13, 2019. After the petitioner approached this court by filing the present writ petition on September 6, 2019 with due intimation to the respondents, respondent No. 3 went ahead and passed the order-in-original dated November 11, 2019. We fail to understand when the respondents could wait for 13 long years after issuance of the show-cause notices, there could not have been any earthly reason to proceed at such great speed and pass the order-in-original before the court could adjudicate on the correctness of the action of the respondents. Is it open to the respondents to materially alter the subject matter of the writ petition pending bef....
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.... is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice or demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case." 20. In a later decision in State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd. [State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd., (2007) 11 SCC 363], the Supreme Court had reiterated the aforesaid principle in the following words: (SCC p. 367, para 18) "18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors." 21. As noted above, Section 73 of the Act, as in force at the material time, did not stipulate any period within which the show-cause notice was required to be adjudicated....
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....Supreme Court/High Court/CEGAT, etc; (iii) Cases where audit objections are contested; and (iv) Cases where the Board has specifically ordered the same to be kept pending and to be entered into the call book". 24. According to the respondents, the procedure of placing a case in the "call book" is well accepted. In the present case, Respondent 1 had done so, as the issue involved in the impugned show-cause notice was pending consideration before the Supreme Court in CCE & Service Tax v. Sobha Developers Ltd. [CCE & Service Tax v. Sobha Developers Ltd. Civil Appeal Nos. 9819-9820 of 2010, decided on 17-1-2017] , which was decided on 17-1-2017. 25. The question whether the procedure of placing matters in the "call book" is permissible is a contentious one. The Gujarat High Court in Siddhi Vinayak Syntex (P) Ltd. v. Union of India [Siddhi Vinayak Syntex (P) Ltd. v. Union of India, 2017 SCC OnLine Guj 2609] had observed as under: (SCC OnLine Guj para 35) "35. ... In the opinion of this Court, instructions to consign a case to the call book are relatable to the adjudicatory process, and do not provide for any incidental or supplemental matters....
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....e notice being kept in the "call book", the petitioner would have applied for an appropriate relief by filing for appropriate proceedings. It was not expected for the assessee to preserve evidence and records for a long period of time. It is material to note that the Revenue had filed a special leave petition in Union of India v. ATA Freight Line (I) (P) Ltd. [Union of India v. ATA Freight Line (I) (P) Ltd. SLP(C) No. 003240 of 2023, dt. 10-2-2023] before the Supreme Court, which was dismissed by an order dated 10-2-2023. The said order reads as under: "Delay condoned. Having heard learned counsel for the parties at length, we do not find any good ground to interfere with the impugned judgment and order passed by the High Court. Accordingly, the special leave petition is dismissed. Pending application(s), if any, stand disposed of." 37. It is apparent from the above that the Supreme Court had considered the matter but had found no grounds to interfere with the judgment of the Bombay High Court. 38. In view of the above, we conclude that the proceedings pursuant to the impugned show-cause notice are inordinately delayed and it is now impe....
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....entions of the parties open. She also points out that this Court had in its order dated 18.04.2023 also considered the decision of the Bombay High Court in ATA Freight Line (I) Pvt. Ltd. v. Union of India & Ors.:2022 SCC OnLine Bom 648 and a Special Leave Petition against the said decision was dismissed by the Supreme Court. 4. The order dated 10.02.2023 passed by the Supreme Court in Special Leave Petition (Civil) Diary No.828/2023 captioned Union of India & Ors. v. ATA Freight Line (I) Pvt. Ltd. indicates that prior to the dismissal of the Special Leave Petition, the Court had heard the counsels for the parties at length and found that there was no ground to interfere with the said decision. 5. The decision rendered by the Hon'ble Supreme Court in Commissioner, GST and Central Excise Commissionerate II & Ors. v. M/s Swati Menthol & Allied Chemicals Ltd. & Anr. (supra) was rendered in the facts of that case as the court considered it apposite to relegate the matter to the Adjudicating Authority. 6. We find no ground to review the judgment under review. Moreover, it is also seen that the present review petition has been filed after 154 days delay. The lea....
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.... under the provisions of Rules 9 (B), 52A, 173 (B), 173 (F) and 173 (G) of Central Excise Rules, 1944 and Section 11A of the CEA, 1944 alleging less payment of duty due to misclassification. The respondents had kept the impugned show cause notice and ten other SCNs as indicated in the chart above in the call book on the ground that the matter was sub-judice. However, from the pleadings on record and also from the averments made in the counter affidavit, it appears that none of the conditions as enumerated in the CBIC circular / guidelines relied upon by the respondents and also by the petitioner stood satisfied for transferring the matter to the call book. It is not a case where the department had gone in appeal before the learned CEGAT or before the Apex Court, rather it was the petitioner who twice went up to the Apex Court in Civil Appeal No. 782 of 1987 against the first SCN dated 8th February 1984 and in Civil Appeal No. 3973 of 2001 against the SCN dated 13th August 1990. The instant SCN pertains to the period June 1993 to November 1993 and is of 9th December 1993. Learned counsel for the 11 respondents has fallen back on Clause 2 of the condition stipulated in the CBIC circu....
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....ill be done by respective CCEs. The Chief Commissioner may monitor such review periodically in their respective zones. The progress report of the call book cases should continue to mention in the MTR as well as in the monthly statements of the progress achieved in "Key Result Areas". In circular dated 10th March 2017 : "9.4 Intimation of Call Book cases to notice: A formal communication should be issued to the notice, where the case has been transferred to the call book." 19. In this regard, it is pertinent to refer to the provisions of Section 11A of the CEA which reads as under :- SECTION 11A OF THE CENTRAL EXCISE ACT, 1944 "SECTION 11A- Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,- xxx xxx xxx (4) Where any duty o....
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....etitioner. 21. Petitioner has also relied upon the recent judgment of the Apex Court, in Special Leave to Appeal (Civil) No. 12376 of 2022 dated 29th July 2022 arising out from a judgment of Punjab and Haryana High Court wherein the show cause notice remain unadjudicated for 11 years. In the peculiar facts and circumstances of the case the Apex Court refused to interfere in the matter and the special leave petition was dismissed. The decision in the case of Eastern Agencies Aromatics Private Limited (Supra) relates to the delay of nine years in adjudication of a show cause notice under Section 28 of the Customs Act, 1962 which also contains a similar provision "if it is possible to do so". The opinion of the learned Bombay High Court at para 14 to 17 are quoted hereunder for easy reference: 14. Perusal of the show cause notice shows that the breach alleged for initiating action for demanding the forgone import duty was on the ground of irregular exports by the exporters and breach of the provisions committed by the exporters. It is not in dispute that the Petitioner had promptly replied the show cause notice well within time in the year 2014 itself. It is further ....
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....cause notice do not constitute any reasonable ground and the delay caused is not sustainable, as the same is in breach of the principles of natural justice. Though in Affidavit-In-Reply it is sought to be contented that the period of limitation prescribed by the amending Act, 2018 is not applicable to the present show cause notice of the year 2013, nothing was argued before us in support of this contention. In our view, even otherwise the powers of such nature of adjudicating the show cause notice are required to be exercised within reasonable time. We do not find any justification for the inaction on the part of the Respondents for keeping the adjudication of the show cause notice pending and for seeking revival of the same after a period of 9 years. For the reasons recorded above, the show cause notice impugned in the Petition is required to be quashed and set aside and it is also necessary to prohibit the Respondent from adjudicating the show cause notice any further." 22. Similar is the view expressed by the Punjab and Haryana High Court in the case of GPI Textiles Limited Vrs. Union of India [2018 (362) ELT 388 (P&H)] where the show cause notices issued under Section ....
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....ted that since the issue of classification had been settled, accordingly it was decided to take the show cause notices out from the call book. At multiple places in the impugned order, it has been stated that the issue had attained a finality in 2004 itself. Regarding this stand, we hold that since the issue did attain finality in 2004 itself, there was absolutely no justification in keeping the show cause notices pending thereafter. The file notings show that though the Commissioner was apprised in 2007 that the issue had attained a finality, still a decision was taken by him on 26.10.2007 to keep the cases in the call book. Mere pendency of another matter before the Tribunal when the issue had attained a finality by the Hon'ble Apex Court, 28 cannot be a reason to keep the SCN in the call book. A lapse of 18 years from 2004 to 2022 remains unexplained. Neither is there an explanation for any change of circumstances for taking out the notices from the call book in November 2022. In such circumstances, the SCN and the OIO cannot be countenanced. Reference is made to a recent decision of the Delhi High Court in the case of Nanu Ram Goyal v. Comm. of CGST & CEX, WP(C) No. 13....
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....cidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [(1969) 2 SCC 74 : AIR 1970 SC 1] this Court vide para 7 has emphasised three preconditions attracting applicability of doctrine of merger. They are: (i) the jurisdiction exercised should be appellate or revisional jurisdiction; (ii) the jurisdiction should have been exercised after issue of notice; and (iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower court and constitute the only final judgment. In Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774 : AIR 1975 SC 1185] the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree that is subsequently passed on review whether it modifies, reverses or ....
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....e Customs Act within a period of six months or one year of the date of issuance as the case maybe. The same can be extended for a further period of one year by an officer senior in rank to the proper officer, after considering the circumstances under which the proper officer was prevented from passing an order within the prescribed period. 25. It is significant to note that the provisions of section 28 (9) of the Customs Act were amended by the Finance Act, 2018 (Act No. 13 of 2018)). The same came into effect from March 29, 2018. The amended and unamended provisions of section 28 (9) of the Customs Act have been referred above. Pursuant to the said amendment, the words "where it is possible to do so" were deleted from section 28 (9) of the Customs Act and a proviso was inserted, which provided that where a proper officer fails to determine the amount of duty within the specified period any officer senior in the rank to that of the proper officer may extend the period to a further period of six months or one year as the case may be on being satisfied of the existence of the circumstances under which the proper officer was prevented from determining the duty within the spec....
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....as been issued for non-levy, short-levy, non-payment, short-payment or erroneous refund, prior to the 29th day of March, 2018, being the date of commencement of the Finance Act, 2018 (13 of 2018), such notice shall continue to be governed by the provisions of section 28 as it stood immediately before such date." 30. The intention of the legislation, thus, is apparent that the show-cause notices which were issued prior to the Finance Act coming into force the Finance Act, 2014 were required to be governed by unamended Act of section 28 (9) of the Customs Act. 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 February 14, 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 months from the date of issuance. 32. The unamended section 28 (9) of the Customs Act, specifically provides that the proper officer "shall" determine the amount of duty within six months or within o....
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....service tax not levied or paid or short-levied or short-paid or erroneously refunded.-... (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under 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 the proviso to sub-section (1) or the proviso to sub-section (4A)." 36. Section 73, as referred to above, contains a provision that is identically worded as the erstwhile section 28 (9) of the Customs Act. This court, after considering the facts of that case, had allowed the writ petition on the ground that the show-cause notice was not adjudicated within the time prescribed. 37. This court after considering the circumstances as narrated by the Revenue, held as under: "12. In the present case, from the respondents' list of dates, it is apparent that it was certainly possible for the adjudicating authority to adjudicate upon the show-cause notice issued to the petitioner within a period of one year at least f....
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....Gala International and are reproduced hereinbelow: "34. In the given facts, we are inclined to accept the petitioners' contention that the present petitions are covered by the ratio of the decision of this Court in Nanu Ram Goyal v. Commr. (CGST & CE) [Nanu Ram Goyal v. Commr. (CGST & CE), (2023) 6 HCC (Del) 489 : (2023) 116 GSTR 495] and that deferring the adjudication of the impugned show-cause notice on account of the call book procedure was not justified. However, without going into the question as to the validity of the action of the respondents in placing the impugned show-cause notice in a call book, it is also apparent that the impugned show-cause notice was not adjudicated for a period of over eight years (30-4-2009 to 21-7-2016) even though there was no impediment in adjudicating the same. xxxx xxxx xxxx 36. It is at once clear that the period within which the impugned show-cause notice was required to be adjudicated has long since elapsed. The controversy raised is squarely covered by the recent decision of this Court in Swatch Group India (P) Ltd. v. Union of India [Swatch Group India (P) Ltd. v. Union of India, 2023 SCC OnLine Del 4938] .....
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....d from August 5, 2021. 11. Of equal significance is the amendment which came to be introduced in section 28 (9) (b) in terms of the Finance Act, 2018 [Act 13 of 2018.] and pursuant to which the words "where it is possible to do so" came to be deleted. The statutory amendment as introduced in terms of the aforenoted Act 13 of 2018 thus clearly lends credence to the submission of the learned counsel for the petitioner that the period of one year as prescribed in clause (b) was legislatively conferred a mandatory flavour. xxxx xxxx xxxx 14. We thus find ourselves unable to accept the position of any legal impediment which could be recognised to have either fettered the jurisdiction or restrained the concerned jurisdictional Commissionerates from proceeding to finalize the SCNs' in accordance with section 28 (9)(b). The direction of similar SCNs' being placed in abeyance and which is an aspect which is referred to in the directives of the Board must necessarily be recognised to be restricted to those SCNs' which may have originally been issued by the DRI. This since undisputedly the judgment in Canon India [(2021) 16 GSTR-OL 1 (SC); 2021 SCC OnLine SC 200.] d....
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....cipal Chief Commissioners/ Chief Commissioners of Customs, Central Excise and Service Tax; 2. The Director General of Revenue Intelligence/ Central Excise Intelligence; 3. [email protected] Sir/ Madam, Sub: Instruction to Show Cause Notice issued in relation to sub-section (11) of Section 28 of the Customs Act, 1962 on the competency of officers of DGDRI, DGCEI and Customs (Prev.) in the Call Book-reg. I am directed to refer to Board Instructions of even no. dated 29.06.2016 & 28.12.2016 (copy available on CBEC website) on the above subject. 2. In this regard, I am directed to say that the Board inter alia, had referred the issue of pending adjudications of cases covered by the above said Board Instruction to the Ld. Solicitor General of India. The Ld. Solicitor General has opined, inter alia, that in view of the unconditional stay in force, granted by the Hon'ble Supreme Court, the Department could continue with adjudication of the Show Cause Notices hitherto covered by the Mangali Impex judgment. 3. Thus, in view of the opinion of the Ld. Solicitor General, the Board Instruction of even no. dated 29.06.2016 & 28.12....
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.... Impex. The aforenoted instruction acknowledges that notwithstanding the decision of the Supreme Court in Sayed Ali and the validating amendments introduced in Section 28, in light of the challenge pending before the Supreme Court against the judgment in Mangali Impex, it would be appropriate to transfer all pending adjudications to the call book till disposal of the matter by the Supreme Court. It is relevant to note that insofar as the challenge to Mangali Impex is concerned, the Supreme Court had by its order dated 01 August 2016 stayed the operation of the judgment. The respondents had thereafter and bearing in consideration the unconditional stay that was granted by the Supreme Court, issued fresh instructions on 03 January 2016 withdrawing the earlier instruction dated 29 June 2016 thus directing all concerned to take out matters which had been transferred to the call book. 58. Inexplicably and a few months thereafter, the Board took yet another turn this time ostensibly prompted by a decision rendered by the CESTAT on a batch of appeals and which had remitted matters to adjudicating authorities in light of the pendency of the appeal before the Supreme Court in the matter ....
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....t personal hearing, which was to take place had been adjourned sine die and the next date of hearing would be informed later. Since there was no further communication from the said Authority and three years had since passed, CWP No. 9340/2021 was filed before the High Court seeking quashing of the notices issued by the Department and also the proceedings commenced thereon. The High Court has accepted the contentions of the respondent(s) and has quashed the show cause notices issued by the Appellant(s)/Department. As a result, the proceedings have also been concluded. Learned Additional Solicitor General submitted that the abrupt conclusion of the proceedings pursuant to the impugned order has caused prejudice to the Revenue inasmuch as the proceedings pursuant to the issuance of the show cause notices and the demand made have not been adjudicated upon, whereas the respondent(s) are liable to pay to the Department in terms of the demand made in the show cause notices. He submitted that there were genuine reasons as to why the proceedings could not conclude inasmuch as a matter similar to the matter under consideration was the subject matter of a writ petition before the Jam....
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.... stand disposed." 61. It was on the basis of the aforenoted orders of the Supreme Court that learned counsels for the respondents sought to contend that delay in itself would not be sufficient ground to annul or interdict adjudication proceedings and that notwithstanding an assertion of an inordinate delay, the Court would be justified in remitting the matter to the adjudicating authorities with appropriate directions for expeditious closure. It is these rival submissions which fall for our consideration. VI. THE 'STATE OF FLUX' QUESTION 62. We propose to firstly deal with the contention of the respondents that it was the unsettled position in law which led to a delay in adjudication. As noticed hereinabove, as per the respondents it was the decisions in Sayed Ali, Mangali Impex and Canon I which had cast a cloud on their right to pursue adjudication proceedings and impeded their right to conclude proceedings with expedition. It must at the outset be noted that the record would reflect that not all of the SCN proceedings issued pan-India had come to be penned by officers of the DRI. This was a position which the Court had an occasion to take note of in Gautam Spinners. ....
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....sment and re-assessment of customs duty may be construed as invalid. The result would be huge loss of revenue to the exchequer and disruption in the revenue already mobilized in cases already adjudicated. However, having regard to the urgency of the matter, the Government issued notification on 6th July, 2011 specifically declaring certain officers as proper officers for the aforesaid purposes. 3. In the circumstances, it has become necessary to clarify the true legislative intent that Show Cause Notices issued by Customs Officers, i.e., officers of the Commissionerates of Customs (Preventive), Directorate General of Revenue Intelligence (DRI), Directorate General of Central Excise Intelligence (DGCEI) and Central Excise Commissionerates for demanding customs duty not levied or short levied or erroneously refunded in respect of goods imported are valid, irrespective of the fact that any specific assignment as proper officer was issued or not. It is, therefore, purposed to amend the Customs Act, 1962 retrospectively and to validate anything done or any action taken under the said Act in pursuance of the provisions of the said Act at all material times irrespective of issuan....
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....ed Ali [2011] 7 GSTR 338 (SC), section 28 (11) of the Act does not state that it would operate notwithstanding anything contained either in the Act or any other Act for the time being in force. In other words, the Legislature has not made it explicit that section 28 (11) would prevail notwithstanding anything contained in Explanation 2 to section 28 of the Act. (ii) On the contrary, Explanation 2 which, as it presently stands, appears after section 28 (11) of the Act as already stood enacted with effect from April 8, 2011 opens with the words "for the removal of doubts". It is made clear that non-levy, short-levy or erroneous refund prior to April 8, 2011 would be governed by section 28 "as it stood immediately before the date on which such assent is received". (iii) Section 28 (11), as it presently stands, was not in the statute book prior to April 8, 2011. Therefore, no reference can be made to section 28 (11) of the Act for determining not only the procedure but the very basis on which a non-levy, short-levy or erroneous refund occurring prior to April 8, 2011 should be dealt with. (iv) Prior to April 8, 2011 and even subsequent thereto, only a "proper....
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.... Act as authorising the officers of the customs, Directorate of Revenue Intelligence, Directorate General of Central Excise Intelligence, etc., to exercise powers in relation to non-levy, short-levy or erroneous refund for a period prior to April 8, 2011 if, in fact, there was no proper assigning of the functions of reassessment or assessment in favour of such officers who issued such show-cause notices since they were not "proper officers" for the purposes of section 2 (34) of the Act and further because Explanation 2 to section 28 as presently enacted makes it explicit that such non-levy, short-levy or erroneous refund prior to April 8, 2011 would continue to be governed only by section 28 as it stood prior to that date and not the newly recast section 28 of the Act. Section 28 (11) interpreted in the above terms would not suffer the vice of unconstitutionality. Else, it would grant wide powers of assessment and enforcement to a wide range of officers, not limited to customs officers, without any limits as to territorial and subject matter jurisdiction and in such event the provision would be vulnerable to being declared unconstitutional. As regards the period s....
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....duction of Section 28 (11) was necessary because the position of law on the functions of proper officers as interpreted by this Court in Sayed Ali (supra) and the consequent invalidation of show cause notices issued by the Commissionerates of Customs (Preventive), DRI and others, was not the legislative intent. Parliament clarified that show cause notices issued by officers of the Commissionerates of Customs (Preventive), DRI, Directorate General of Central Excise Intelligence (DGCEI) and Central Excise Commissionerates for demanding customs duty not levied or short levied or erroneously refunded under Section 28 in respect of goods imported are valid, irrespective of whether any specific assignment as proper officer was issued. xxxx xxxx xxxx 142. The very same argument has been canvassed before us by the respondents herein. To comprehensively address the submissions made before us, we find it necessary to address the following three issues: (i) What is the scope of Explanation 2 to Section 28? (ii) Whether the field of operation of Section 28 (11) and Explanation 2 overlaps? In other words, what is the scope of the non-obstante clause in sub-se....
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....agraphs, we hold that the Bombay High Court judgment in Sunil Gupta (supra) lays down the correct position of law, whereas the Delhi High Court decision in Mangali Impex (supra) is incorrect and is consequently set aside." 69. For the sake of completeness, it would be pertinent to take note of the subsequent repeal of the Validation and Amendment Act in terms of the Repealing and Amending Act, 2019 [2019 Act]. However, the same would be of little consequence in light of Section 4 thereof and which is extracted hereinbelow: "4. The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to; and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or es....
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....), such notice shall continue to be governed by the provisions of Section 28 as it stood immediately before such date." Thus, all proceedings emanating from SCNs issued prior to 29 March 2018 were ordained to be governed by Section 28 as it stood immediately before that date. The clear intent of Explanation 4 was to insulate proceedings that were pending on the date when the 2018 Act came to be promulgated and thus be freed from the impact of cessation and interdiction of proceedings in light of the two Provisos which had come to be inserted in Section 28 (9). 72. It would be pertinent to recall that the First Proviso to Section 28 (9) had stipulated that where a proper officer fails to conclude adjudication proceedings in accordance with the time frames specified in clauses (a) or (b) of Section 28 (9), any officer senior to the proper officer, having regard to circumstances which may have prevailed and prevented conclusion of pending adjudication, to extend the period so specified by a further period of six months and one year respectively. It was, however, the Second Proviso inserted in terms of the 2018 Act which brought closure to pending proceedings and dealt with the c....
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....rposes of this section, Sections 2, 3 and 5 of the Customs Act, as amended by this Act, shall have and shall always be deemed to have effect for all purposes as if the provisions of the Customs Act, as amended by this Act, had been in force at all material times. Explanation.-For the purposes of this section, it is hereby clarified that any proceeding arising out of any action taken under this section and pending on the date of commencement of this Act shall be disposed of in accordance with the provisions of the Customs Act, as amended by this Act." Despite these legislative interventions, the respondents continued to abstain from taking proactive and effective steps to conclude proceedings that had been initiated as far back as 2006. VII. DELAY IN ADJUDICATION: ITS IMPACT 74. The meaning to be ascribed to the phrase "where it is possible to do so" was lucidly explained in Swatch Group. As the Court observed on that occasion, while the aforesaid expression did allow a degree of flexibility, it would have to be understood as being concerned with situations where the proper officer may have found it impracticable or impossible to conclude proceedings. Swatch Group ....
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.... place much prior to eight years would be unfair and unreasonable." 76. Way back in 1969, the Supreme Court in State of Gujarat vs. Patil Raghav Natha (1969) 2 SCC 187, had held that while Section 211 of the Land Revenue Code did not prescribe a limitation period for the Commissioner to revise orders, such power must be exercised within a reasonable time, determined by the facts of a case and the nature of the order. In this case, the Commissioner's action, over a year later, was deemed unreasonably delayed with the Supreme Court observing thus: "11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. 12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his ....
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....in the facts and circumstances of the case notice of demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case." 78. More recently in SEBI vs. Sunil Krishna Khaitan (2023) 2 SCC 643, the Supreme Court again reiterated the principle that when no limitation period is prescribed for initiating proceedings under a statute, action must still be taken within a reasonable period and which could vary based on the facts and circumstances of each case. The key factors to be considered, the Supreme Court explained, would include the nature of the violation, whether it was concealed, potential prejudice caused, and the creation of third-party rights. The Court reaffirmed that authorities must act without undue delay to prevent injustice and abuse of power, while ensuring that the statute's objectives are met. The Court also noted that public interest demands that stale matters are not pursued unnecessarily and objections to delay must be fairly and rationally considered. It enunciated these precepts in the following terms: "92. This Court in the judgm....
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....ute, the rights and liabilities thereunder and other consequences, including prejudice caused and whether third party rights have been created are relevant factors. Whenever a question with regard to inordinate delay in issuance of a show-cause notice is made, it is open to the noticee to contend that the show-cause notice is bad on the ground of delay and it is the duty of the authority/officer to consider the question objectively, fairly and in a rational manner. There is public interest involved in not taking up and spending time on stale matters and, therefore, exercise of power, even when no time is specified, should be done within reasonable time. [ See State of Gujarat v. Patil Raghav Natha, (1969) 2 SCC 187, para 11; Mansaram v. S.P. Pathak, (1984) 1 SCC 125, para 12; Union of India v. Citedal Fine Pharmaceuticals, (1989) 3 SCC 483, para 6 : 1989 SCC (Tax) 464; State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249, para 16; State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd., (2007) 11 SCC 363.] This prevents miscarriage of justice, misuse and abuse of the power as well as ensures that the violation of the provisions are checked and penalised without d....
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....laced in the, "call book". Even if it is accepted that it is permissible for the respondents to place the matter in the "call book" which this Court does not-it was necessary for the respondents to have communicated the said fact to the petitioner. There are a series of decisions rendered by the Bombay High Court restraining the respondents from continuing with the proceedings in cases where the matters were placed in the "call book" without any information to the assessee. It is apposite to refer to a few of those decisions. xxxx xxxx xxxx 36. In ATA Freight Line (I) (P) Ltd. v. Union of India [ATA Freight Line (I) (P) Ltd. v. Union of India, (2023) 25 GSTR-OL 181 : 2022 SCC OnLine Bom 648], the Bombay High Court in somewhat similar circumstances where the show-cause notice had been kept in abeyance for more than seven to eleven years allowed the petition. The Bombay High Court also noticed that if the petitioner was informed about the show-cause notice being kept in the "call book", the petitioner would have applied for an appropriate relief by filing for appropriate proceedings. It was not expected for the assessee to preserve evidence and records for a long pe....
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....dated April 26, 2016 relied upon by respondent No. 2 indicates that by the said circular, respondent No. 1 clarified that the cases where (i) the issue involved has either been decided by the Supreme Court or the High Court and such order has attained finality or, (ii) Board has issued new instruction or circular clarifying the issue involved, subsequent to issue of the order to transfer the case to the call book would be taken out of call book and adjudicated. The said circular also provides for various eventualities where file can be transferred to call book already referred to in the earlier paragraph of this judgment. 23. Neither the affidavit-in-reply nor the arguments advanced by the learned counsel for the respondents indicated that the petitioner was at any point of time informed about the transfer of file relating to the show-cause notices in question to call book prior to the date of the petitioner's letter asking for closure report. xxxx xxxx xxxx 26. This court in case of Bombay Dyeing and Manufacturing Company Limited v. Dy. Commissioner of CGST & CX (supra) after adverting to the judgment in cases of Parle International....
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.... 5.1 to 5.18 of chapter V of Audit report no. 01 of 2021 on SCNs and adjudication process in CBIC - regarding. Audit para no. 5.1 to 5.18 of chapter V of Audit report no. 01 of 2021 on Show Cause Notices and adjudication process in CBIC has made certain observations regarding issuance of SCNs and disposal of adjudication matters including call book cases. 2. Briefly, the Audit has pointed that (i) Draft SCNs have been found pending for issuance. (ii) There is inordinate delay in adjudication. (iii) Adjudication orders have not been issued within stipulated period after completion of personal hearings. (iv) Periodical review of call book cases has not been done. (v) In certain cases, the records/files pertaining to adjudication have not been produced before Audit Party. 3. With the introduction of GST law, Board has consistently expressed its desire and resolve that it is of utmost importance to dispose the legacy matters related to Central Excise and Service Tax regime as expeditiously as possible. In this regard, Board has issued instructions from time to time regarding disposal of legacy issues such as issuan....
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..../92-CX.3 dated 04.03.1992 wherein while indicating the categories of the cases to be transferred to call book, it was directed that a case should be transferred to call book only with the approval of Commissioner. Further, the Commissioners were instructed to review the Call book cases on monthly basis. These instructions have subsequently been reiterated vide Circular No. 385/18/98-CX, dated 30-3-1998 and Circular No. 719/35/2003-CX dated 28.05.2003. Audit has pointed out certain instances where Call book cases are not reviewed periodically, due to which, there are instances of delay in retrieval of Call book cases. It is therefore, reiterated that instructions in above mentioned D.O letter and subsequent instructions/circulars must be adhered to and Pr. Commissioners/Commissioners must review Call book cases on monthly basis. Non-adherence to these instructions shall be viewed seriously. 4.4.2 Audit has also pointed certain instances where noticees are not intimated about transfer of SCNs to Call book. Attention is invited to para 9.4 of the instructions issued vide Master circular No. 1053/02/2017-CX dated 10.03.2017 which reads as under: "9.4 Intimation of Cal....
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....not be made available to the audit parties of the Accountant General. It may be seen that the above-mentioned Circular was issued keeping in view the basic premise that audit parties cannot question the decision taken by the judicial or quasi-judicial authority. The said circular thus needs to be read in proper context that sharing of records with audit parties does not interfere with the judicial/quasi-judicial proceedings. The audit parties may require the production of the records for ensuring that due procedure is followed or otherwise. Therefore, the request of the Audit for production of records must be acceded to. 4.6 Attention is invited to the instructions issued by the Board vide Circular No. 716/32/2003-CX., dated 23-5 2003 wherein the Commissioners and Chief Commissioners have been directed to analyze the reasons for pendency of adjudication cases and strengthen the monitoring system. These instructions have also been reiterated from time to time. In this regard MPR DPM-ST-1A and DPM-CE-1A of the Monthly Progress Report (MPR) incorporate information relating to adjudication of pending cases and their disposal. Accordingly, Pr. Chief Commissioner/ Chief Commissi....
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....r the CBIC circulars, the case can be referred to call book only after prior approval of Jurisdictional Commissioner. In the entire counter affidavit the respondents have not annexed or brought on record any document to show that necessary approval was taken from the Jurisdictional Commissioner. It is further pointed out from the CBIC circulars issued from time to time such as Circular Nos. 385/18/98-CX dated 30th March 1998, 719/35/2003-CX dated 28th May 2003 and 1053/2/2017-CX dated 10th March 2017 that the competent authorities have been mandated to carry out periodic monthly review of SCNs kept in a call book. The respondents have not given a semblance of an answer as to whether any such periodical review was carried out by the competent authority. Referring to the Circular dated 10th March 2017, Clause 9.4 it is also submitted that whenever a case has been transferred to the call book a formal communication should be issued to the noticee. It is submitted that various courts have disapproved of such an approach to revive an adjudication proceedings after an inordinate delay in view of the conditions stipulated under Section 11 A (11) of the CEA. The expression 'if it is possib....
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....s contended that the competent authority i.e. the Commissioner, Central Excise has revived the proceedings and issued a notice of personal hearing to the petitioner since these SCNs/SODs were kept in call book on account of the matter pending before different courts including the Apex Court. However, on being specifically asked learned counsel for the respondent has not been able to dispute or indicate any explanation from the stand of the respondents as reflected in the counter affidavit as to whether there was any basis for keeping the SCN in call book after the decision rendered by the Apex Court on 5th May 2004 in Civil Appeal No. 3973 of 2001. There are no materials enclosed to the counter affidavit which also goes to show that the prior approval of the jurisdictional commissioner was taken before keeping the SCN into the call book. It is also not shown from the counter affidavit whether the petitioner was ever communicated of such a decision to keep the case in the call book all along and even after disposal of the Civil Appeal No. 3973 of 2001 vide judgment dated 5th May 2004. However, learned counsel for the respondent submits that the petitioner may be relegated to partici....
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....bove also stand satisfied in the present case. The respondents have not enclosed any document to show that prior approval of the Collector of excise was taken before keeping the case in the call book. There seems to be no reference of any periodic review of the call book, though the relevant CBIC circulars such as the circular dated 30th March 1998 and 20th May 2003 specifically required the Commissioners to review the cases transferred to call books on a monthly basis in circumstances where the department was confronted with a situation where provisional assessment cases were kept pending for several years. The extract of the relevant circulars are quoted here under:- In circular dated 30th March 1998 : "While the Board had issued instructions to Commissioners to review the cases transferred to call books on a monthly basis, it is observed that no such review is actually being done. (Board's DO Letter F.No.101/2/92-CX.3, dated 4th March 1992 and Board's Circular No.53/90-CX.3, dated 6.9.1990). 2. The Board vide its < > specified the following categories of cases which can be transferred to call book viz.: 1. Cases in which the Department has gon....
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....o conclude pending adjudications. In fact, and to the contrary, the frequent placement of matters in the call book, the retrieval of matters therefrom and transfer all over again not only defies logic it is also demonstrative of due application of mind quite apart from the said procedure having been found by us to be contrary to the procedure contemplated by Section 28. The respondents have, in this regard, failed to abide by the directives of the Board itself which had contemplated affected parties being placed on notice, a periodic review being undertaken and the proceedings having been lingered unnecessarily with no plausible explanation. The inaction and the state of inertia which prevailed thus leads us to the inevitable conclusion that the respondents clearly failed to discharge their obligation within a reasonable time. The issuance of innumerable notices would also not absolve the respondents of their statutory obligation to proceed with promptitude bearing in mind the overarching obligation of ensuring that disputes are resolved in a timely manner and not permitted to fester. Insofar as the assertion of the assessees' seeking repeated adjournments or failing to cooperate i....
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.... F.No. 276/104/2016- CX.8A(Pt.) dated 29.06.2016. on Impugned SCN was taken out from the call book 03.01.2017 in view of Board's instruction issued vide F.No. 276/104/2016-CX.8A(Pt.) dated 03.01.2017. Impugned SCN was transferred to the call book w.e.f. 03.11.2017 in view of Board's instruction issued vide F.No. 437/143/2009-Cus.IV dated 03.11.2017. 1. 17.04.2012 2. 13.10.2014 3. 02.12.2020 4. 11.08.2023 It is matter of record that the Petitioner repeatedly requested for RUDs which led to substantial delay in the personal hearings being held. It is matter of record that the Petitioner repeatedly requested for RUDS despite such RUDS having been supplied to them Ref. Annexure A-6 at p. 33 of the Counter Affidavit. The repeated demands for RUDS, which contributed substantially to the delay in the adjudication of the SCN, have been Page 1 of 52 2. Ashish Jain 20.12.2012 Pending and Ors V. ADG, DRI and Anr. WP(C) 12425/2023 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18....
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....the Noticees. 8. Noticees demanded RUDs and adjournments for personal hearing, SIO(Adj.), The SIO vide their letter of even no 2453 dated 23.05.2017 informed the SIO (Adj.), DRI that RUDs had already been supplied in the form of CD along with SCN and party was also informed vide letter of even no. dated 31.01.2013 to collect another set of RUD 9. This matter was taken up with DRI headquarters on 11.12.2017 and 07.08.2018 to transfer the case in call book with various decisions of Hon'ble courts giving different decisions. The case was not further taken up for adjudication. 10. 2020-21:- Lockdown in the country due to COVID Pandemic 11. On 03.06.2021, the case was transferred to call book. 12. Personal hearing was given to notices on 12.07.2023 and 19.07.2023 13. Next personal hearing was given on 23.08.2023 14. Next personal hearing was given on 19.10.2023 Page 3 of 52 3. Echo International and Ors. v. Principal Commission er Customs of Import and Anr. WP(C) 25.02.2009 23.01.2024 3705/2024 4. Dolphin 25.02.2009 23.01.2024 Printers and Anr. Principal Commission V. er of ....
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.... Advocate of co-Noticees requested for adjournment. Advocate of co-Noticees stated that Final Reply will be submitted after receipt of valuation reports and Pre Page 5 of 52 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters 11.10.2013 Personal took place. 13.11.2013 & 14.11.2013 19.12.2013 Hearing completion of cross examination of the Chartered Engineer. Copies of valuation reports were sent on 20.12.2012 to co-Noticees. Some co-noticees again asked for RUDs and some asked for more time to file Reply Petitioner requested for examination of original overseas enquiries made by the DRI. Advocate reiterated demand of original overseas enquiry Adv appeared before the adjudicating authority and DRI official appeared along with required documents. 29.06.2016 3.1.2017 (Taken out of Call Book) SCN was transferred to call book in light of Delhi High Courts' Judgement in Mangli Impex. Board's Instruction issued vide F No. 276/104/2016- CX.8A(Pt.) dated 03.01.2017. 3.11.2017 (Transfer to Call Boo....
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.... 5. Petitioner requested the Adjudicating Authority to keep the Show Cause Notice in abeyance till they receive the co-relation chart even though it was never a part of RUDS as a delaying tactic. 6. By letter dated 02.06.2014, Petitioner himself has requested to keep the matter in abeyance 7. Respondent No 2 was appointed as the common adjudicating authority by CBIC Notification No 81/2016-Customs(N.T) dated 06.06.2016. 8. After the judgement of the Hon'ble Delhi High Court in WP(C) 441/2013 in the matter of M/s Mangli Impex Ltd, SCN was transferred to call book w.e.f 29.06.2016 and taken out from the call book- CBICS Instruction vide F No. 276/104/2016-CX.8A(Pt.) dated 03.01.2017. 9. Personal Hearing letter to all the noticees was issued on 02.06.2017. Petitioner requested to keep the SCN in abeyance in view of M/s Mangli Impex Ltd. 10. Personal Hearing on 29.06.2017-Petitioner wanted to wait for co-relation chart (not part of RUDS) 11. 03.11.2017- transferred to call book. 12. 03.05.2019 - taken out of call book. 13. Personal Hearing Letters dated 09.09.2019- Petitioners sought two months' time to submit reply. 14. Personal....
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.... Cus.IV dated 03.05.2019. Impugned SCN was 9. Chaman Lal Same as WP(C) 3755/2024. Bhambri V. Principal Commission er Customs of Import and Anr. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. 04/2021 Customs dated 17.03.2021. - The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. Page 10 of 52 10. WP(C) 3866/2024 Chaman Lal Same as WP(C) 3755/2024. Bhambri Harsh Packaging v. Principal Commission er of Customs Import and 11. 12. Anr. WP(C) 3867/2024 Chaman Lal Same as WP(C) 3755/2024. Bhambri V. Principal Commission er Customs of Import and Anr. WP(C) 3868/2024 Chaman Lal Same as WP(C) 3755/2024. Bhambri Maruti Graphics V. Principal Commission S....
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.... Board's Instruction No. 04/2021 Customs dated - 17.03.2021. The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. Graphics Trade V. Principal Commission er Customs of Import and Anr. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters Page 14 of 52 18. WP(C) 3933/2024 Chaman Lal Same as WP(C) 3755/2024. Bhambri Man Bhavan Arts Principal Commission V. 19. er of Customs Import and Anr. WP(C) 3934/2024 Chaman Lal Same as WP(C) 3755/2024. Bhambri Magnum Graphics V. Principal Commission er Customs of Import and Anr. WP(C) 3935/2024 20. M/s VOS SCN- Pending Technologies 29.11.2019 India Private Ltd. v. The Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters SCN transferred to Call book on 01.04.2021 The Adjudicating Authority vide letter dated 0....
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....€¢ • • 24.05.2017: Petitioner cited the judgment of the Hon'ble High Court in the matter of M/s Mangli Impex Ltd in order to keep the adjudication in abeyance. 23.12.2020: The counsel of the Petitioners appeared for Personal Hearing on 23.12.2020. However, even until then, no reply had been submitted on behalf of the Petitioner. 19.01.2021: Further time was sought to file a reply. 10.02.2021: Counsel for the Petitioner submitted an interim reply to the SCN and insisted on cross- examination of one Mr. Madhusudan Satyanarayan, who had passed away on 30.11.2017. 25.02.2021: Counsel for the Petitioner submitted an interim reply to the SCN and insisted on cross- examination of one Mr. Madhusudan Satyanarayan, who had passed away on 30.11.2017. Pre • 05.08.2022: No appearance • 12.08.2022: No appearance. Laxmi Sales Same as M/s VOS Technologies India Private Ltd. v. Principal Additional Director General and Anr. [WP(C) 4831/2021] – S. No. 20. Corporation V. The Principal Additional Director General and Anr. Signature Not Verified Digitally Signed ....
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....ar to take up the adjudication in pending cases. Impugned SCN was again transferred to call book w.e.f., 03.11.2017 in light of the Board's Instruction issued vide F No. 437/143/2009-Cus.IV dated 03.11.2017. File was received back in the ICD TKD Commissionerate Import and subsequently transferred to ACC Export Commissionerate in compliance of the Order No. 01/2018 dated 15.11.2018 for the purpose of adjudication. vide letter dated 21.08.2014 submitted that they have not received RUD-4 in the absence of which they can't file reply and requested to adjourn the hearing for one month. 15.12.2011 03.12.2014 10.03.2017 18.04.2023 15.12.2011: Personal hearing granted, but adjournment sought on behalf of another Noticee (Naresh Uppal) on account of marriage of his daughter. Request made for hearing on 12 January, 2012, but no notice received. - 03.12.2014 Notice for personal hearing received, but adjournment sought Pre Page 19 of 52 26. Navshakti 23.12.2006 Pending Industries Pvt. Ltd. and Anr. V. Union of ....
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....tual PH 19 17.03.2021 [Letter dated 08.04.2021 issued to all Noticees (Call Book)] 20 31.03.2022 21 23.08.2023-PH 22 26.12.2023-PH Board's Instruction issued vide F No. 276/104/2016- CX.8A(Pt.) dated 03.01.2017. Petitioner asked for documents and cross-examination Board's Instruction issued vide F No. 437/143/2009- Cus.IV dated 03.11.2017. Office Memorandum issued vide F No. 437/143/2009- Cus.IV dated 03.05.2019. None appeared in the PH. None appeared in the PH. Petitioner requested for documents None appeared in the PH. An e-mail dated 18.12.2020 was received from Petitioner asking documents It was informed to all the noticees that the impugned SCNs have been transferred to Call Book due to Hon'ble Supreme Courts' Judgement in Canon India Pvt Ltd vs Commissioner of Customs 2021(376) ELT 3. Taken out of call Book in light of the book in light of the Section 97 of the Finance Act, 2022 and CBIC Circular No. 07/2022-Customs dated 31.03.2022. Petitioner requested for documents A PH letter dated 11.12.2023 was issued to all the noticees wherein it was also informed that soft copies of RUDs can ....
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....Central Tax Delhi Opportunity of personal hearing was granted on 16.08.2021. However, the Petitioner through its authorized representative Pre N/A - SCN issued under Finance Act, 1994 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters Page 22 of 52 West Anr. WP(C) 6146/2024 and intimated on 16.08.2021 that they are unable to attend the PH due to some personal difficulties and requested for another date. He also requested that one more case being SCN dated 26.10.2018 may also be taken up for personal hearing on the next date of hearing. Certain other relevant details are as follows: Subsequent to the cadre restructuring in CBIC held in 2014, the above mentioned SCN was assigned to the Commissioner Central Gurgaon-I adjudication of Excise for purpose vide Order No.03/2014 dated 28.11.2014 issued by the Director (Service Tax), CBEC. • The CBIC, vide Circular No. 1049/37/2016-CX dated September 29, 2016, enhanced the of ....
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....24.01.2024 and submitted its reply, inter-alia raising the issue of limitation in adjudication of the show cause notice. The last reply to one of the 5 (five) SCNS i.e. SCN No. 195/Div-1/2014-15 dated 23.05.2014 was filed by the party on 14.03.2024. • All the above mentioned 5 SCNS (including SCN No. 13/Audit/2012-13 dated dated 20.04.2012 & 164/Div- I/2012-13 16.10.2012) have been adjudicated vide Order- in- Original dated 28.03.2024. passed by Additional the Commissioner, CGST Page 26 of 52 29. Navshakti 22.12.2006 Pending Industries Pvt. Ltd. and Anr. V. Union of India and Ors. WP(C) 16193/2023 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters SCN was Impugned transferred to the call book w.e.f. 29.06.2016 in view of Board's instruction issued vide F.No. 276/104/2016- CX.8A(Pt.) dated 29.06.2016. Personal Hearings in the matter for the Petitioner were held on the following dates: 1. 17.04.2012 2. 30.09.2014 ....
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.... with respect to the Petitioner which has been elaborated in the list of dates encapsulated in the Counter Affidavit at pp. 3-5. regularly Noticees sought adjournment in the name of non- submission of RUDS or Non-RUDs. Did not appear on many personal Hearing Dates. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters Pre Page 28 of 52 WP(C) 23.08.2013 5896/2024 26.08.2013 27.08.2013 29.08.2013 03.10.2013 04.10.2013 29.08.2013 03.10.2013 04.10.2013 07.10.2013 12.11.2013 20.12.2013 08.01.2014 09.01.2014 15.01.2014 10.10.2014 13.10.2014 14.10.2014 22.08.2016 23.08.2016 24.08.2016 30.08.2016 02.09.2016 06.09.2016 08.09.2016 13.09.2016 14.10.2016 15.09.2016 16.09.2016 17.09.2016 19.09.2016 20.10.2016 25.10.2016 16.11.2016 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters 17.11.2016 Page 29 of 52 Signature Not Verified Digital....
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....d the personal hearing on 24.01.2024 and submitted its reply, inter-alia raising the issue of limitation in adjudication of the show cause notice. The last reply to one of the 5 (five) SCNs i.e. SCN No. 195/Div- 1/2014- 15 dated Page 32 of 52 32. Echo 25.05.2009 26.03.2024 International V. Commission er of Customs Export Anr. and Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters 05.01.2024 09.02.2024 23.05.2014 was filed by the party on 14.03.2024. All the 5 SCNS (including SCN No. 18/2018 26.10.2018) dated have been adjudicated vide Order-in- Original dated 28.03.2024 passed by the Additional Commissioner, CGST Delhi West Commissionerate. The final reply to the SCNS was filed by the party on 14.03.2024 and the department has adjudicated all the 5 (Five) SCNS on 28.03.2024 i.e. within two weeks after receiving final reply. the Pre Page 33 of 52 33. WP (C) 6190 / 2024 Daily Ajit 22.12.2006 Pun....
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....7 Board Circular No.07/2022- Customs dated 31.03.2022 Taken out of call book on 31.03.2022 No call book placement Delay due to COVID and 73(4B) to be interpreted as not mandatory as it states that the adjudication is to be completed within one year where it is possible to do so Petitioner caused delay by filing reply to SCN almost 2.5 years after date of SCN i.e. on 29.07.2022 PHs on: None Post • 25.09.2023 • 05.10.2023 12.10.2023 • However, none appeared on the above dates. 29.01.2024 Post Page 35 of 52 36. 37. Delhi International Airport Limited V. Commission er of CGST and Central Excise WP(C) 6545/2024 24.04.2015 31.04.2024 No callbook placement Delay due to COVID and 73(4B) to be interpreted as not mandatory as it states that the adjudication is to be completed within one year, where it is possible to do so. Notice on 08.12.2023, None attended on 22.12.2023. Pre GMR Airport 30.09.2020 13.02.2024 within less than 3 months from Infrastructure Limited V. Union India and of (under Se....
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....19. 14.08.2014 Nobody ― appeared on the given date and time. 03.12.2014 - Nobody appeared on given date and time. Advocate on behalf of Noticee No. 3 requested for another date of personal hearing. 23.02.2015 The AR of the Petitioner appeared and sought adjournment in the matter. 31.03.2015 - Nobody appeared on the given date and time. 18.09.2015 The ARs appeared and sought more time to file the reply. under the proviso to sub-section (1) or the proviso to sub-section (4A)]. Pre Page 38 of 52 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters Impugned SCN was transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. 04/2021 Customs dated 17.03.2021. The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. 13.10.2015 AR of the Petitioner state....
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.... the final disposal of the case by the Hon'ble Supreme Court. He also informed that all such cases are not being entertained CESTAT. He also in Page 41 of 52 39. Shri. Surinder Garg and Ors. Principal Commission er Customs Import and Ors. WP(C) 7327/2024 Signature Not Verified Digitally Signed By:KAMLESH KUMAR 22.12.2006 with 07.02.2024 03.05.2007 Petitioner asked for documents and V. addendum to SCN dated Petitioners of 29.10.2007 cannot object conducting of Personal Hearing and subsequent passing of Adjudication order as they themselves requested for reminders dated to 20.11.2007 ' 29.03.2008 , 06.06.2008 the 01.09.2008 13.01.2009 And a personal hearing by letters dated 15.06.2009 06.05.2023, 09.05.2023, 03.08.2007 Request for supply of RUDs was forwarded to DRI 06.09.2023 29.10.2007 Addendum to Show Cause Notice was issued and Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters requested that he should be given opportunity to make ....
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....s vs Sayed Ali [2011 (265) ELT 17] held DRI officers to not be proper officers for issuing the demand notice. However, Customs Act was amended by the Legislature and various Notifications/Circulars, like CBIC Circular 44/2011-Cus dated 23.09.2011 and CBIC Notification No 40/2012-Cus (N.T) dated 02.05.2012 assigning various officers of Customs, including the DRI, the functions of the "Proper Officers" as mentioned in the Customs Act 09.12.2013 Personal hearing notice was issued for hearing on 06.01.2014 03.01.2014 Reply to PH letter dated 09.12.2013 09.10.2014 Adjudication file was transferred to the Commissioner (Adjudication), NCH in light of the Boad letter F.No. 437/03/2012/Cus-IV dated 20.01.2012. 01.06.2015 Personal hearing notice issued to noticees for Personal hearing on 25.06.2015. 17.06.2015 Petitioners stated that reply to SCN could not be filed - PH 25.06.2015 Personal hearing was attended by Petitioners. Page 44 of 52 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters Counsel for co-noticees sought copies of RUDs and Non R....
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....r as sought by them, copies of Duty Calculation Charts viz. Table A, Table B1 and table B2 and list of RUDs having Sr. No.56 & 57 were forwarded to the noticees. Noticees were requested to submit their reply. In view of the above, it is apparent that Respondents have always been trying to complete the adjudication process, but it is the Petitioners who deliberately and intentionally procrastinated the Adjudication process by repeating the same thing that they have not received all documents to invoke the defence of principal of natural justice, whereas the RUDs were received by them long time back. Page 46 of 52 40 40. Elof Hansson 8 SCNs Order passed India Private been issued. on Limited V. Principal 22.12.2006 07.02.2024 in SCN Commission 22.12.2006 F.No.23/118/ er Inland 23.12.2006 2005-DZU Container 23.12.2006 dated and Anr. 10.03.2008 22.12.2006 18.03.2008 and WP (C) 23.05.2008 remaining 7355/2024 & SCN not 12.01.2009 adjudicated yet Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C....
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....ruction issued vide F.No. 276/104/2016-CX.8A(Pt.) dated 03.01.2017. Page 48 of 52 43. Ascent 23.10.2013 28.03.2024 Construction Pvt. Ltd. v. Commission Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date: 10.12.2024 17:18:44 W.P.(C) 4831/2021 & connected matters Impugned SCN was transferred to the call book w.e.f. 03.11.2017 in view of Board's instruction issued vide F.No. 437/143/2009-Cus.IV dated 03.11.2017. Impugned SCN was taken out from the call book on 03.05.2019 in view of the Office Memorandum issued vide F.No. 437/143/2009- Cus.IV dated 03.05.2019. Impugned SCN was transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. 04/2021 Customs dated 17.03.2021. The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. The SCN was not transferred Personal to the call book. hearing was granted to the Petitioner on: The Petiti....