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TMI Blog2021 (2) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... PARKASH, J . (The aforesaid presence is being recorded through video conferencing since the proceedings are being conducted in virtual court) This common order shall dispose of the aforesaid writ petitions bearing CWP Nos.19815, 19726 and 20188 of 2020 involving common question of facts and law. The petitioner(s) have filed the present writ petitions under Article 226 227 of the Constitution of India, seeking quashing of show cause notice(s) of finalization of provisionally assessed bills of entry, beyond a period of 8-9 years. For the sake of convenience, the facts are borrowed from CWP No.19815 of 2020. The petitioner-private limited company during the period 2012-2013 vide twenty two (22) Bills of Entry, imported Pressed Distillated , which the respondent provisionally assessed in terms of Section 18(1)(b) of the Customs Act 1962 (for short, Act ) and drew representative samples for testing from laboratory. However, after expiry of 8-9 years from the date of filing of bill of entry, the respondent has issued impugned notice(s) for framing final assessment according to Section 18(2) of the Act, despite the orders of this Hon'ble Court dated 31.08.2018 passed in CWP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e e-mail on 01.03.2019. Thereafter, for the finalization of provisional assessment under Section 18 of the Act, the letters dated 13.10.2020 and 04.11.2020 have been issued for personal hearing calling upon the importer to attend the personal hearing but, the importer has not appeared for personal hearing, rather preferred present petition(s) before this Court. He further contends that Section 18 of the Act does not prescribe any limitation period to frame final assessment. The department has not accepted judgment of this Court in case of Gupta Smelter Pvt. Ltd. v. Union of India, 2019 (365) ELT 77 and an appeal has been filed before Hon'ble the Supreme Court, which is still pending decision. Learned counsel further submits that the provisions of Section 11-A of the Act only provide that order should be passed within the period prescribed, as far as possible. There is no definite time limit prescribed. In any case, the petitioner will not suffer any prejudice as he will be afforded due opportunity before passing order against him. The matters which were transferred to the call book have now been taken up in view of the revised Circular No. 1023/11/2016- CX dated 8.4.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of- (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice. xx xx xx (11) The Central Excise Officer shall determine the amount of duty of excise under sub-section (10)- (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 sub-section (4) or subsection (5). 13. Similar issue was considered by Gujarat High Court in M/s. Siddhi Vinayak Syntex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be determined within the above time frame, viz. six months from the date of the notice in respect of cases falling under sub- section (1) and one year from the date of the notice in respect of cases falling under sub-section (4) or subsection (5). When the legislature has used the expression where it is possible to do so , it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witnesses may have to be examined, the record of the case may be very bulky, huge workload, non-availability of an officer, etc. which are genuine reasons for not being able to determine the amount of duty within the stipulated time frame. However, when a matter is consigned to the call book and kept in cold storage for years together, it is not on account of it not being possible for the authority to decide the case, but on grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India, is in conformity/ authorized by the provisions of Section 37-B of the Central Excise Act, 1944. The order on merit has been upheld vide order dated 28.7.2017. 16. The view expressed in M/s Siddhi Vinayak Syntex Private L imited' s case (supra) was subsequently followed by Gujarat High Court in Parimal Textiles' case (supra), where again belated order passed after issuing show cause notice, was set aside. 17. Section 11A(11) of the Act itself provides that Central Excise Officer shall determine the amount of duty within six months in case notice has been under Sub-section 1 thereof, whereas in the case of fraud, collusion, etc., the period prescribed is one year. No doubt, the words 'where it is possible to do so' have been used, however, that will not stretch the period to decades as is in the cases in hand. The issue involved in all the present petitions is squarely covered by judgment of this Court in M/s GPI Textiles Limited case (supra) and Gupta Smelters Pvt. Ltd. case (supra) and, thus all the petitions are accordingly allowed. The impugned notices for framing final assessment of provisional assessment are hereby quashed in ..... 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