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TMI Blog2025 (2) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication 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.' Coming to the facts of this case, the impugned SCN dates back to 20th June, 2012. The Petitioners had made several requests for providing all the RUDs with the concerned assessing authority. The personal hearing was scheduled on several dates between July, 2012 and March, 2015. Thereafter, the Petitioners are stated to have filed their respective detailed replies to the impugned SCN. Personal hearing was conducted on 17th July, 2014 and 30th March, 2015. Despite the repeated personal hearings scheduled and conducted by the concerned adjudicating officer, the impugned SCN was not adjudicated between 2012 and 2015. It is noted that the Mangli Impex [2016 (5) TMI 225 - DELHI HIGH COURT] decision came only on 3rd May, 2016 and the matter has been placed in the Call Book only thereafter. The impugned SCN was then taken out of the Call Book sometime in 2019 pursuant to the letter dated 15th April, 2019 issued by the Chief Commissioner, Delhi Zone. The Customs Department has argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use Notice dated 20th June, 2012 (hereinafter "impugned SCN") issued by the Respondent No. 1 - Commissioner of Customs, Inland Container Depot (Export), Tughlakabad, New Delhi and Respondent No. 4 - Additional Director General, Directorate of Revenue Intelligence, Delhi Zonal Unit, respectively. 3. The brief facts of the case are that the Directorate of Revenue Intelligence, Delhi Zonal Unit, (hereinafter "DRI"), on the basis of intelligence received, suspected misdeclaration and undervaluation in the import of rubber compound, un-vulcanized rubber compound and nylon chords (hereinafter "subject goods") by two entities namely M/s. Y.K. Rubber and M/s Hashmi Imports (P) Ltd. The said entities were believed to be under the actual control of one Mr. Rafique. During the course of investigation, the DRI suspected that Mr. Rafique was also using other firms namely, M/s. Jai Durga, M/s. Star International (Petitioner No. 1 in W.P.(C) 11028/2024) and M/s. Laxmi Industries for the import of subject goods. The said firms were believed to have been actually opened and operated by Mr. Rakesh Kumar Mangala (Petitioner in W.P.(C) 11027/2024). Mr. Dayanand Baghel (Petitioner No. 2 in W.P.(C) 110 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the goods imported by Shri Rafique in his firm. Despite such knowledge Shri Dayanand allowed his firm to be used for such fraudulent imports. Thus, Shri Dayanand, proprietor ofM/s Star International has done various acts of omission & commission, as discussed hereinabove, which have rendered the imported goods liable for confiscation under Section 111 (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 Dayanand, is liable for penalty under Section 112 (a) & (b) and Section 114AA of the Customs Act, 1962." 5. On the basis of the allegations stated in the impugned SCN, the DRI raised various demands against the Petitioners including interest and penalty. The impugned SCN was however not adjudicated for a substantial period of time by the concerned assessing authority. 6. It is the case of the Petitioners that after issuance of the impugned SCN, the Petitioners had made several request with the concerned assessing authority to provide all the 'relied upon documents' (hereinafter "RUDs"). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, as detailed above, by recourse to wilful mis-statement and suppression of facts. Accordingly, I find M/s Hashmi Imports, M/s Y.K. Rubber, M/s Star International, M/s Jai Durga and M/s Laxmi Industrial Corporation, have rendered themselves liable to penalty under Section 114A of the Customs Act, 1962. * * * 46. In respect of Sh. Rakesh Kumar Mangala, controller of M/s Jai Durga and M/s Star International and M/s Laxmi Industrial Corporation I find that he admittedly had full knowledge about the under-valuation of the goods imported by Rafique in these firms owned/provided by him to Rafique at the time of their importation; that he was also involved in dealing with and sale of such fraudulent goods; that he has done various acts of omission & commission, as discussed herein above, which have rendered the imported goods liable for confiscation under Section 111 (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, I find Sh. Rakesh Kumar Mangala liable for penalty under section 112 (a) & (b) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 28(9) of the Customs Act, 1962 (hereinafter "the Act") there is a specific time-period fixed for the purpose of adjudication of show-cause notices and determination of amount of duty or interest. The period specified in the said provision is six months 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 (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 (9) The proper officer shall determine the amount of duty or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General, Directorate of Revenue Intelligence, Delhi and Ors, 2023 SCC OnLine Del 6073. 12. Ld. Sr. Counsel for the Petitioners submits that this phrase - "where it is possible to do so" has been omitted after the amendment and post the omission, the window which existed for delay in adjudication after the issuance of show cause notice does not exist. 13. Ld. Sr. Counsel for the Petitioners has also relied upon the following judgments: i. State of Punjab & Ors. v. Shreyans Industries Ltd., (2016) SCC769. ii. Shri Ram Agro Chemicals Pvt. Ltd. v. Union of India & Ors., 2019 SCC OnLine P&H 4918. iii. Vijay Enterprises & Anr. vs. The Principal Commissioner of Customs & Anr. (2025:DHC:265-DB). Findings & Analysis: 14. Heard. 15. The Court has considered the matter. The main ground on which the impugned SCN and the impugned Order-in-Original are challenged is that the adjudication of the said SCN is beyond the limitation period under Section 28 of the Act. The issue raised in the petition is no longer res-integra. Section 28(9) of the Act, unamended and amended, have been considered in detail by the Coordinate Benches of this Court in Swatch Group India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." M/s Vos Technologies India Pvt. Ltd. v. The Principal Additional Director General & Anr., 2024 SCC OnLine Del 8756 "85. The position which thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all book and taking it up after several years would not be permissible. 17. Coming to the facts of this case, the impugned SCN dates back to 20th June, 2012. The Petitioners had made several requests for providing all the RUDs with the concerned assessing authority. The personal hearing was scheduled on several dates between July, 2012 and March, 2015. Thereafter, the Petitioners are stated to have filed their respective detailed replies to the impugned SCN. Personal hearing was conducted on 17th July, 2014 and 30th March, 2015. Despite the repeated personal hearings scheduled and conducted by the concerned adjudicating officer, the impugned SCN was not adjudicated between 2012 and 2015. It is noted that the Mangli Impex (supra) decision came only on 3rd May, 2016 and the matter has been placed in the Call Book only thereafter. The impugned SCN was then taken out of the Call Book sometime in 2019 pursuant to the letter dated 15th April, 2019 issued by the Chief Commissioner, Delhi Zone. The adjudication proceedings were initiated and personal hearing was fixed on 11th February, 2020, however, none appeared on behalf of the respective Petitioners. Further, in view of the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case is not sustainable." 19. A perusal of the above facts would show that the impugned SCN,which was issued way back in 2012, 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. Further, the Co-ordinate Bench of this Court in Vos Technologies (supra) has rejected the argument of the Customs Department that the delay in adjudication occurred solely due to the repeated request from the assessee for additional documents. The relevant paragraph from the said judgement is extracted hereunder: "36. A stark example of a failure to conclude the adjudicatory process with expedition is represented by pursuant to the issuance of a SCN on 23 December 2006 and saw the passing of a final order on 08 February 2024. According to the respondents, although approximately 80 dates of personal hearing are stated to have been fixed betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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