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TMI Blog2024 (12) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... there existed no reason for the non-adjudication of the show-cause notice and therefore this Court is of the opinion that the facts do not reveal any glaring impossibility for the Customs Department to deal with the show-cause notice. The impugned show-cause notice dated 17th April, 2015 deserves to be quashed and is set aside - petition allowed. - JUSTICE PRATHIBA M. SINGH AND JUSTICE AMIT SHARMA For the Petitioner Through: Mr. Shubhankar Jha, Advocate (M: 9999233551) For the Respondents Through: Mr. Harpreet Singh, Sr. Standing Counsel along with Ms. Sonakshi Monga, Mr. Tanishq Mehta, Ms. Gusheen Kaur, Ms. Chayya Khosla and Mr. Sanjam Chaba, Advocates. Ms. Nidhi Banga, Senior Panel Counsel with Mr. Nishant Kumar, Advocate for Respondent No. 4. PRATHIBA M. SINGH, J. (ORAL) 1. This hearing has been done through hybrid mode. 2. The present writ petition has been filed under Article 226/227 of the Constitution of India seeking issuance of writ for quashing of show-cause notice F.No. 23/66/2013-DZU (hereinafter, impugned show cause notice/ SCN ) dated 17th April. 2015. 3. The case of the Petitioner is that they were engaged in the import and trade of car accessories during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths and a maximum period of one year. Section 28(9) of the Act reads as under: Section 28(9) of the Customs Act, as in force prior to 29th March 2018 read as under: 28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxx xxxx xxxx xxxx (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, [where it is possible to do so], in respect of case falling under clause (a) of 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): Section 28(9) and 9(A) of the Customs Act, 1962 pursuant to amendment reads as under: 28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxx xxx xxxx (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 , [xxx], in respect of case falling under clause (a) of sub-section (1); (b) within one year from the date of notice , [xxx] in respect of cases falling under sub-section (4): [ PROVIDED that where the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce does not exist. 11. Mr. Harpreet Singh, Sr. Standing Counsel for the Department submits that the delay in the adjudication was initially due to the decision in Mangli Impex Ltd.(supra), when the matter was put in the call book and thereafter, due to some issues between the DRI and the Customs Department as to who would be the proper officer to adjudicate the show-cause notice. These were genuine difficulties which existed. Thus, there was complete justification and an impossibility for the Department to adjudicate. 12. Ld. Sr. Standing Counsel further relied upon the decision of the Supreme Court in Commissioner, GST and Central Excise, Commissionerate, IT and Ors. v. M/s Swati Menthol and Allied Chemicals Ltd. and Anr. 2023 SCC OnLine SC 1566 which involved delay in the adjudication of two show cause notices relating to send back credit. The said decision has also been considered by a Coordinate Bench of this Court in M/S Vos Technologies India Pvt. Ltd. v. The Principal Additional Director General Anr., 2024 SCC OnLine Del 8756. 13. The Court has considered the matter. The issue raised in the petition is no longer res-integra. Section 28(9) of the 1962 Act unamended and amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since even as per the Revenue the notice issued prior to coming into effect of Finance Act, 2018 would be governed by the unamended provisions. 46. In our view, there is no material to show that it was not possible for the proper Officer to determine the amount of duty within the prescribed period. The mention of the words, where it is not possible to do so , in our opinion, does not enable the Department to defer the determination of the notices for an indeterminate period of time. The legislature in its wisdom has provided a specific period for the authority to discharge its functions. The indifference of the concerned officer to complete the adjudication within the time period as mandated, cannot be condoned to the detriment of the assessee. Such indifference is not only detrimental to the interest of the taxpayer but also to the exchequer. 47. In the absence of any ground that it was not possible for the officer to determine the amount of duty within the prescribed period, the impugned SCN has lapsed and cannot be adjudicated. Vos Technologies India Pvt. Ltd. v. The Principal Additional Director General Anr., 2024 SCC OnLine Del 8756 85. The position which thus emerges from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of this case, the Show Cause Notice dates back to 17th April, 2015. The counter affidavit claims that there was certain re-organisation within the Customs Department and on 12th January, 2016, a Common Adjudication Authority was appointed. Even if the date is reckoned from 12th January, 2016 when the adjudication authority was appointed, the Mangli Impex decision came only on 3rd May, 2016 and the matter has been placed in the callbook on 21st July, 2016. A few months later, it was retrieved on 2nd February, 2017 but again from 2017 till 2023, there can be no reason for not adjudicating the show-cause notice. 16. Four hearing notices have been given during this period. Despite the reply having been filed to the show-cause notice, there has been no adjudication. In the opinion of this Court, there existed no reason for the non-adjudication of the show-cause notice and therefore this Court is of the opinion that the facts do not reveal any glaring impossibility for the Customs Department to deal with the show-cause notice. 17. Thus, following the decisions of the Coordinate Benches, the impugned show-cause notice dated 17th April, 2015 deserves to be quashed and is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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