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TMI Blog2019 (8) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was never stayed by this Court or any other Court so Respondents were always free to adjudicate show cause notice. The excuse of non- adjudication tendered by counsel for the Respondents might be ground to extend limitation by passing order in terms of proviso to Section 28 (9) or Section 28 (9A), however in the absence of passing any such order, the Respondent-Department cannot absolve itself from its statutory duty. Petition allowed. - MR JASWANT SINGH AND MR LALIT BATRA, JJ. For The Petitioner (s) : Mr. Jagmohan Bansal, Advocate For The Respondent : Mr. Sourabh Goel, Advocate And Mr. D.D. Sharma, Advocate (CWP No.6862 of 2017) JUDGEMENT JASWANT SINGH, J . CM No.11566-CWP of 2019 in CWP No.6862 of 2017 Present CM has been filed under Article 226 read with Section 151 of CPC for placing on record copy of judgment passed by this Court in M/s Harkaran Dass Vedpal Vs. Union of India decided on 22.07.2019 reported as 2019-TIOL-1591-HC-P H-CUS as Annexure P-6 . For the reasons stated in the CM, the same is allowed and copy of judgment dated 22.07.2019 in M/s Harkaran Dass Vedpal Vs. Union of India reported as 2019-TIOL-1591-HC-P HCUS is taken on record as Annexure P-6 . Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner requested for adjournment and Commissioner of Customs, Nhava Sheva again fixed the matter for hearing on 14.09.2012. The Petitioner appeared for personal hearing and filed Reply dated 13.09.2012 (Annexure P-3). The Adjudicating Authority heard the matter in September 2012 but did not pass order till March 2017. The Respondent-Commissioner of Customs, Ludhiana issued hearing Notice dated 23.03.2017 (Annexure P-5) for personal hearing on 30.03.2017. CWP No. 6865 of 2017 The Petitioner is engaged in the manufacture of Soap used for washing of clothes. The Petitioner during 2004-2006 imported Mixed Acid Oil/Acid Oil and Customs Authorities after framing assessment permitted clearance of goods. The DRI initiated an investigation against the Petitioner which culminated into Show Cause Notice dated 31.03.2009 ( Annexure P-1 ) alleging misdeclaration of description and value of goods. The Petitioner filed Reply dated 28.06.2010 ( Annexure P-2 ) and requested crossexamination of chemical examiner and one witness. The Adjudicating Authority vide Order dated 02.08.2010 ( Annexure P-3 ) rejected request of the Petitioner to allow cross-examination, however on appeal Ld. Tribunal set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to challenge show cause notice was that it was issued invoking extended period of limitation which can be invoked in the event of collusion, mis-statement or suppression of facts. The said question is a mixed question of law and facts, therefore Bombay High Court refused to interfere and held that question of delayed adjudication has to be decided in each individual case. Judgment in the case of T.N. Krishna Iyer (Supra ) deals with prosecution, judgment in the case of Soval Solar Ltd. (Supra ) and Titagur Paper Mills (Supra ) deal with order passed by Adjudicating Authority. These judgments are distinguishable as present petitions are raising question of reasonable period of limitation as well retroactive amendment and as per judgment of Hon ble Supreme Court in the case of State of Punjab Vs. Bhatinda District Co-Op. Milk P. Union Ltd. 2007 (217) ELT 325 writ is maintainable because question of reasonable period of limitation cannot be decided by authorities appointed under relevant statute, thus we find it appropriate to entertain present writ Petitions under article 226 of the Constitution of India. 7 . As cited by counsel for the Petitioners, we have decided CWP No. 10889 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable. 19. For the reasons mentioned above, we find that the notices in the present cases having been issued more than decade back and the proceedings having not been concluded within reasonable time, the same deserves to be quashed It is not in dispute that the provisions of Section 11A of the Central Excise Act, 1944 involved in the aforesaid judgment are para materia to the provisions of Section 28 of the 1962 Act. From the perusal of above quoted judgment, it can be easily and safely concluded that show cause notices even as per un-amended provisions of Section 28 of the 1962 Act could not be kept pending beyond a reasonable period and authorities were/are duty bound to pass orders within reasonable period of time. 10 . Having heard learned Counsel for the parties at length and scrutinized record of the case, the conceded position as emerging in the present petitions is that the DRI issued Show Cause Notice(s) on 20.02.2009 (Annexure P-6) and 19.03.2009 (Annexure P-9). The Petitioners filed writ petitions before this court assailing the show cause notices inter alia on the ground of jurisdiction of DRI to issue show cause notices. In the CWP No. 10889 of 2015 question of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended Subsection (9) and newly inserted (9A) of Section 28 w.e.f. 28.03.2018, it is evident that authorities are bound to pass order within one year from the date of Show Cause Notice in cases of Custom Duty not paid/short levied and said period may be extended for a further period of one year by any officer senior in rank to the proper officer having regard to the circumstances under which proper officer was prevented from passing an order before the expiry/lapse of the initial stipulated one year. Still further in case any circumstance as noticed in Sub-section (9A) exists, the extended period of one year provided in Sub Section 9 shall commence from the date when such reason ceases to exist provided the proper officer informs the person concerned of the reason for such non determination of amount of duty or interest under Sub Section 8. Thus the only outcome of non adjudication by the proper officer within one year without invoking of Sub-section (9A) or within the extended period of one year, if any, by a senior officer in terms of the first proviso to Sub Section (9) would be lapsing of notice, as provided in the second proviso to the Sub Section (9) of the amended Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) as well as sub section (3) of Section 11 of the PGST Act . It is also not dispute that the notices in the form ST XIV for the assessment years 1995-96 and 1996-97 were issued on 26.04.2001 and 21.04.2001 respectively. The assessment orders under Section11(3) assessing demand of tax for a sum of ₹ 18,18,318/- and ₹ 10,51,851/- for the respective assessment years was passed on 27.07.2001. Therefore it is not disputed that even if the three years period of limitation was to be computed w.e.f. 03.03.1998, the assessment orders for both the assessment years were beyond the period of limitation as per the amended provisions of Section 11(3) of the Act . It is also not disputed that the learned Tribunal has on consideration of the provisions of PGST Act and ratio of judgments of cited case law has upheld the contention of the petitioner dealer that the amended period of limitation provided under Sub Section (3) being a piece of procedural law would be applicable to the pending cases like the present case. Learned Tribunal has also held that the assessments made by the assessing authority are not legally sustainable. It is also the admitted case of the Stat that the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod for the reasons stated in sub-section (9A). By Amendment of 2018, the legislature has made it clear that no Show Cause Notice shall be kept pending beyond a period of 1 year by the proper officer unless and until requirement of Sub-section (9A) are complied with or beyond the extended period of another one year by an order passed by any officer senior in rank to the proper officer detailing the circumstances which prevented the proper officer from passing the order within the initial period of one year. In the present writ petitions, the Respondent-DRI issued Show Cause Notice on 20.02.2009 ( P-6 ) 19.03.2009 ( P-9 ) for short levied custom duty and interest due to mis-declaration of description and value of goods relating to the two partnership firms/petitioners and at that point of time the proper officer was required to pass an order within one year i.e. By 2010 where it was possible to do so. However after the Amendment w.e.f. 29.03.2018, the Respondent was bound either to pass an order within one year i.e. by 28.03.2019 in terms of clause (b) of Sub Section (9) of amended Section 28 or within the extended time of one year in terms of first proviso, which is concededly not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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