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TMI Blog2025 (1) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... ly hindered and impeded in resolving the dispute with reasonable speed and dispatch. A statutory authority when faced with such a challenge would be obligated to prove that it was either impracticable to proceed or it was constricted by factors beyond its control which prevented it from moving with reasonable expedition. This principle would apply equally to cases falling either under the Customs Act, the 1994 Act or the CGST Act. The impugned SCN, which was issued way back in 2014, due to repeated placing in the call book has not been adjudicated for so long. Repeated placing and removing from the call book is not a valid justification for non-adjudication of the impugned SCN for about 9 years. Moreover, the gaps between the said periods is also inexplicable. Hearing notices have been given to the Petitioners but there is no reason for non-adjudication of the impugned SCN for long period. Conclusion - The statutory timelines for adjudication must be adhered to, and failure to do so without valid justification results in the lapsing of the SCN. The delay in adjudication was unjustified, and the SCN was quashed. Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 28 (1) of the Customs Act. The allegations against the Petitioners in the impugned SCN are reproduced hereinunder for ease of reference: "19.1 From the facts discussed in the foregoing paras and material evidences available on records, it appears that M/s. PAMCPL and Shri Ashok Singhla, de-facto owner of the imported goods, had imported various types of water purifier parts through their overseas suppliers by mis-declaring the actual l' , transaction value and also willfully suppressing its complete description before the Customs, Kandla with an intention to evade payment of appropriate Customs duty. The value declared by them before the Customs Authority for clearance of the said imported goods was only a part amount paid for the imported consignment. The fact of undervaluation in the import of said consignment has been categorically admitted by Shri Kapil Dev Aggarwal and Shri Ashok Singhla in their statements, as discussed above. Thus, the value of Rs. 15,06,62,426/ (assessable value) (as detailed in the Annexures-A1,B1,C1,D1,E1 AND G1 to the SCN) declared by M/s. PAMCPL before Indian Customs, as mentioned in the invoice and the import documents does not mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value shall be determined by proceeding sequentially through Rule 4 to 9. In the instant case Rule 5 of Customs Valuation Rules, 2007 read with Rule 3 ibid is applied where the actual price of similar goods are available. Accordingly, the correct assessable value is worked out to be Rs. 52.64,80,439/- (re-determined value) (as detailed in the Annexures-A2,B2,C2,D2,E2 & F2 to the SCN) for the purpose of assessment of duty. 19.3 The mis-declaration of the value was done with a willful intent to evade the payment of appropriate customs duty leviable thereon. All these acts on the part of M/s. PAMCPL and Shri Ashok Singhla, de-facto owner of imported goods, have also rendered the goods liable to confiscation under the provisions of the Section 111 (m) of the Customs Act, 1962, in as much as, they mis-declared/ caused to mis-declare the true value of the goods while filing the bills of entry under Section 46 of the Customs Act 1962 in which they were required to declare the true value of the machines. Since, the said acts of omission and commission on the part of M/s. PAMCPL and Shri Ashok Singhla, de-facto owner of imported goods, have rendered the goods liable to confiscation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 114A. 19.6 Further, M/s. PAMCPL have intentionally made declaration and used invoices that were false and incorrect in respect of actual transaction value whereas Shri Ashok Singhla, de-facto owner of imported goods knowingly caused M/s, PAMCPL to make declaration and use invoices that were false and incorrect in respect of actual transaction value declaration, Therefore, M/s, PAMCPL and Shri Ashok Singhla have rendered themselves liable for penal action under the provisions of Section 114AA of the Customs Act, 1962 also. 19.7 Further, Shri .Kapil Dev Aggarwal, Director of M/s. PAMCPL, appears to be the person who was all along aware and had in collusion with Shri Ashok SinghJa, de-facto owner of the imported goods, adopted the modus of under valuation of the said goods imported by them and appeared to be actively involved in evading the actual Customs duty payable thereon and pocketing the same for enrichment of the company. He managed in obtaining commercial invoices of low value from Shri Ashok Singhla and presented the said invoices before Indian Customs at the time of seeking clearance of imported goods, Thus, Shri Kapil Dev Aggarwal appears to have knowingly and delibe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have requested the concerned adjudicating authority to provide all the 'Relied Upon Documents' (hereinafter "RUDs"), which, as per the Petitioner Company, were provided only on 5th March, 2021. The Petitioner Company had filed its detailed reply to the SCN on 18th March, 2021. 7. It is the case of the Department that, in the meantime, the decision of the Coordinate Bench of this Court in Mangli Impex Ltd. v. Union of India & Ors. [2016:DHC:3435-DB] was rendered on 30th May, 2017, due to which the impugned SCN was put in the call book and the same was taken out from the call book sometime in November, 2017. It is stated that the Department had already provided the Petitioner Company with all the RUDs through speed post on 20th March, 2014, however, the Petitioner Company continued to request for all RUDs and non-relied upon documents to delay the proceedings. Thereafter, as per the Department there was a halt on the adjudication proceedings during the 2019-2020 period due to the Covid-19 pandemic. As per the Respondents after the judgment of the Supreme Court in M/s Canon India Private Limited v. Commissioner of Customs, Civil Appeal No. 1827 Of 2018, the impugned SCN was again tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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.] [(9A) Notwithstanding anything contained in sub-section (9), where the proper officer is unable to determine the amount of duty or interest under sub-section (8) for the reason that-- (a) an appeal in a similar matter of the same person or any other person is pending before the Appellate Tribunal or the High Court or the Supreme Court; or (b) an interim order of stay has been issued by the Appellate Tribunal or the High Court or the Supreme Court; or (c) the Board has, in a similar matter, issued specific direction or order to keep such matter pending; or (d) the Settlement Commission has admitted an application made by the person concerned, the proper officer shall inform the person concerned the reason for non-determination of the amount of duty or interest under sub-section (8) and in such case, the time specified in subsect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate General of Intelligence (DRI). In terms thereof, a decision was taken by the Board to keep the show cause notices referred therein pending. It is significant to note that the instruction categorically mentions about a show cause notice dated 19.03.2019 and that in terms of the judgment passed by the Apex Court in Canon India Private Limited v. Commissioner of Customs (supra), the proceedings in the case have become invalid. It was mentioned that since the notice was dated 19.03.2019, it would get barred by limitation on 18.03.2021 and be kept pending till the decisions is taken by the Board. The said instructions appear to have been issued to extend the period in terms of Section 28(9A) of the Customs Act. In terms thereof, if the proper officer is unable to determine the amount of the duty for the reason of a specific direction being issued by the Board for keeping the matter pending, then the time specified in Sub-section (9) shall apply not from the date of notice but from the date when such reason ceased to exist. 45. It is the case of the Revenue that the amended provision of Section 28 of the Customs Act is not applicable in the present case for the reason that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that it was either impracticable to proceed or it was constricted by factors beyond its control which prevented it from moving with reasonable expedition. This principle would apply equally to cases falling either under the Customs Act, the 1994 Act or the CGST Act." 14. The record also shows that there are several other orders/judgments have been passed by various authorities following the same reasoning and rationale, including the following decisions: - Nanu Ram Goyal v. Commissioner of CGST and Central Excise, Delhi, [(2023) 6 Centax 148 (Del.)] - Gala International Pvt. Ltd. v. Additional Director General, Directorate of Revenue Intelligence, Delhi and Ors, 2023 SCC OnLine Del 6073 - Parle International Limited v. Union of India & Ors. [MANUIMHI196S12020] - Union of India vs. ATA Freight Line (I) Pvt. Ltd. [Supreme Court Order dated 10.02.2023- SLP (Civil) Diary No. 828/2023]; - Sushitex Exports India Ltd. And Ors. Vs. The Union of India and Anr. [2022-TIOL-123-HC-MUM-CUS] - Sidhi Vinayak Syntex Pvt. Ltd. v. Union of India [2017 (352) E.L.T. 455 (Guj.)] - Shree Shakambari Silk Mills vs. Union of India [2018 (13) G.S.T.L. 279 (Guj.)] In all of these cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s IV dated May, 2019. That the said instructions letters are annexed herewith as Annexure -- R/ 1 1 (Co1ly.). […] o. That the Adjudicating Proceeding was likely to be completed, however, the Department was under constraint to put the case again in Call Book in March, 2021 in view of the decision of Hon'ble Supreme Court in the matter of Canon India Pvt. Ltd." 16. A perusal of the above would show that the impugned SCN, which was issued way back in 2014, due to repeated placing in the call book has not been adjudicated for so long. Repeated placing and removing from the call book is not a valid justification for non-adjudication of the impugned SCN for about 9 years. Moreover, the gaps between the said periods is also inexplicable. Hearing notices have been given to the Petitioners but there is no reason for non-adjudication of the impugned SCN for long period. The present case is fully covered by the decisions of the Coordinate Bench of this Court, including the recent decision of this Court in Shri Balaji Enterprises v. Additional Director General New Delhi & Ors., W.P.(C) 11207/2023 (decided on 19th December, 2024). 17. Thus, following the decisions of the Coordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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