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TMI Blog2025 (1) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned SCN has lapsed and cannot be adjudicated. The impugned SCN, which was issued way back in 2008, 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 15 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 SCN was quashed due to being barred by limitation, and the justification of delay due to call book placement was rejected. Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... eficiaries in the fraudulent imports being done by Shri Sandeep Aggarwal." […] 7.25. Shri Tilak Raj Jain, controller of Mis Ikon Wire (India), admittedly had full knowledge about the under-valuation of the goods imported by Shri Sandeep Aggarwal in the firms owned and controlled by him, at the time of their importation. He actively abetted the undervaluation and mis-declaration of goods imported by Shri Sandeep Aggarwal and was the beneficiary of such fraud. He was also involved in the dealing with, keeping of and sale of such fraudulent goods. Thus, Shri Tilak Raj Jain has done various acts of omission & commission, as discussed hereinabove, which have rendered the imported goods liable for confiscation under Section 111 (d) & (m) of the Customs Act, 1962. He has also concerned himself with removing, keeping, depositing, selling and dealing with the imported goods for which he knew and had reasons to believe that they are liable for confiscation. Accordingly, Shri Tilak Raj Jain is liable for penalty under Section 112 (a) & (b) and Section 114M of the Customs Act, 1962. 7.26. Shri Mohan Lal Jain, controller of M/s Ikon Wire (India), admittedly had full knowledge about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie before the Customs, Excise and Service Tax Appellate Tribunal (hereinafter "CESTAT"). Accordingly, the Petitioners therein preferred an appeal before CESTAT which finally decided the issue in respect of non-supply of RUDs vide order dated 14th July, 2016. 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 due to which the impugned SCN was put in the call book on 29th June, 2016 and again taken out from the call book on 3rd January, 2017. Thereafter, certain instructions were issued by the Central Board of Indirect Taxes & Customs (hereinafter "CBIC") which resulted in the impugned SCN again being put in the call book on 3rd November, 2017 and taken out from the call book on 3rd May, 2019. 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 transferred to the call book on 17th March, 2021 and taken out from the call book on 31st March, 2022 in view of the CBIC circular dated 31st February, 2022. Hearings were fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal 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 subsection (9) shall apply not from the date of notice, but from the date when such reason ceases to exist.]…" 9. It is argued on behalf of the Petitioner that substantial delay of almost fifteen years in adjudication of the show-cause notice cannot be justified by relying upon the phrase "where it is possible to do so" as contained in Section 28 (9) of the Act. Ld. Counsel for the Petitioner relies upon a number of decisions passed by this Court where the aforesaid provision has been interpreted including the decision in Swatch Group India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 impugned SCN was issued prior to the Finance Act, 2018, coming into force. Therefore, in our opinion the benefit of extension of limitation as provided under Section 28(9A) of the Customs Act would be applicable only in those cases where the show cause notices have been issued after the enactment of the Finance Act, 2018 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [MANU/MH/196S/2020] - 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, the Court has examined the facts and has also considered as to whether the placing of a matter in the call book, for whatever reasons, would justify non-adjudication of the notice within a reasonable period. The opinion has been unanimous of the Coordinate Benches of this Court, that placing of the matter on the call book and taking it up after several years would not be permissible. 14. Coming to the facts of this case, it is clear from the counter affidavit filed by the Respondent No. 2 that the impugned SCN had repeatedly been placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal Hearing. Thereafter, Personal hearing was fixed on 20.11.2023 and in response to which, it has been informed that Shri Tilak Raj Jain and Shri Mohan Jain have filed Writ Petition in the subject matter." 15. A perusal of the above would show that the impugned SCN, which was issued way back in 2008, 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 15 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). 16. Thus, following the decisions of the Coordinate Benches, the impugned SCN dated 26th December, 2008, deserves to be quashed and is accordingly set aside. 17. Ordered accordingly. 18. The petition is allowed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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