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TMI Blog2024 (11) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... annexures. Thereafter, he filed an interim reply dated 07.04.2021. Commissioner, further noticed that due to covid related restrictions, the adjudication proceedings were taken up only in February 2021. Thereafter, the appellant again sought a copy of the show cause notice through an advocate which was made available to the appellant in March 2021. The personal hearing took place on 03.06.2021 and the matter was adjudicated on 29.06.2021. Commissioner has given good and cogent reasons for holding that it was not possible to adjudicate the show cause notice within time as stipulated under the unamended section 28(9) of the Customs Act. All that has been pointed out by appellant is that even if the appellant had not filed any reply to the show cause notice, the Commissioner should have adjudicated the show cause notice within the stipulated time. This aspect has already been examined in the earlier part of this order. Appellant has not made any submissions on the merits of the order and, therefore, only the limitation aspect has been considered. Thus, for all the reasons stated above, there is no infirmity in the order passed by the Commissioner. The appeals, therefore, deserve to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r clause (a) of sub- section (1); (b) within one year from the date of notice, in respect of cases falling under sub-section (4). Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year: Provided further that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued. (emphasis supplied) 7. On 29.03.2018, Explanation 4 was also added to section 28 of the Customs Act and the same is reproduced below: Explanation 4 : For the removal of doubts, it is hereby declared that in cases where notice has been issued for non-levy, non 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 conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 546 (P H)], Explanation 4 was substituted on 27.03.2020 and in view of the said Explanation, the show cause notice dated 17.10.2017 would continue to be governed by the unamended provision of section 28(9) of the Customs Act. The Commissioner, then examined the unamended provisions of the section 28 (9) of the Customs Act and considered the effect of where it is possible to do so , which occurs in both clauses (a) and (b) of the unamended section 28(9) of the Customs Act. In this context, the Commissioner recorded the following findings: 4.11 So the present notice needs to be decided as per the present position of law. In the present notice, the other parties representing IPR violation submitted their written replies in November 2017. However, no reply of M/s Maggie Marketing Pvt Ltd. was received till December 2019 . The case was transferred from Commissioner of Customs (ICD Tughlakabad, Exports) to Commissioner of Customs (ICD Patparganj) for adjudication due to work load in November, 2018, vide Order No.01/2018 dt. 15.11.2018 issued by Chief Commissioner, Customs Delhi Zone. M/s Maggie Marketing Pvt Ltd. sought copies of annexure and relied upon documents vide letter dt. 26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time prescribed under the unamended section 28(9) of the Customs Act. 14. It is not possible to accept the contention of the learned counsel for the appellant. What transpires from the record is that after the notice dated 17.10.2017 was issued to the appellant, reply was not filed. In fact, copies of annexures and relied upon documents were sought by the appellant by letters dated 26.12.2019 and 23.07.2020. The time period prescribed under unamended section 28 (9) of the Customs Act had already lapsed much before the submission of these two letters dated 26.12.2019 and 23.07.2020 filed by the appellant seeking relied upon documents and annexures. The appellant, therefore, clearly wanted to file a detail reply to the show cause notice and for this purpose had sought the relevant documents. The appellant could have clearly pointed out to the Commissioner at that point of time only that even if the appellant had not filed any reply, the Commissioner should have passed the order to ensure compliance of the time limit prescribed in the unamended section 28(9), but that was not done. Once the documents were provided, the appellant submitted the interim reply dated 07.04.2021. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. Pursuant to the judgment passed by the Punjab and Haryana High Court in M/s. Harkaran Dass Vedpal (supra), a further amendment was carried out by a Finance Act, 2020 dated 27-3-2020. The same, came into effect retrospectively from 29-3-2018. By Finance, Act, 2020 , the Explanation 4 to Section 28 of the Customs Act was substituted and the same reads as under: Explanation 4. - For the removal of doubts, it is hereby declared that notwithstanding anything to the contrary contained in any judgment, decree or order of the Appellate Tribunal or any Court or in any other provision of this Act or the rules or regulations made thereunder, or in any other law for the time being in force, in cases where notice has 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, 2018 we ..... 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