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TMI Blog2025 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 (12) TMI 269 - CESTAT NEW DELHI], it has been held that non adjudication of the order, with no reason being given to the effect that the order could not be passed within specified time limit due to circumstance beyond control, would be fatal to the legality of the order. In the present case, it has taken nearly Two years for the Commissioner (Appeals) to even take up the Personal Hearing proceedings on 28.08.2020 for the Appeal filed on 06.09.2018. The appellant has attended the same. Hence, there is no delay on their part. After this, the OIA was passed on 24.09.2020. No reason whatsoever has been given as to what necessitated the Commissioner (Appeals) to wait for nearly two years to grant the Personal Hearing and as to why the OIA could not be passed within the time frame of Six Months. The OIA has been passed after 2 years as against the time-frame of Six months given under Section 128A(4A). The ownership of the gold was being claimed by the Appellant right from the beginning when the first statement was recorded. He also named the persons from whom he had procured the gold. The very fact that these persons are residents of the area gets proven from the Election Records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department in custody on 23.11.2001. The Customs Officer recorded his statement wherein he stated to have purchased the gold from the three persons in India and that the gold ornaments were given to him by his customers for polishing. 1.3 After due process, the Adjudicating authority passed the Order in Original No.254/Cus/Jt.Comm(P)/WB/2003 dated 24.10.2003 and ordered for absolute confiscation of the seized gold and imposed penalty of Rs.1,00,000. 1.4 Being aggrieved an appeal was filed before the Commissioner (Appeals), who vide OIA No.Pre/Cus-86/2004 dated 28.05.2004, took the view that the burden to proof towards the gold being smuggled would be on the Revenue and not on the appellant and remanded the matter to the Adjudicating authority. 1.5 Being aggrieved by this OIA, both the present appellant as well as the Revenue filed their Appeals before the Tribunal. 1.6 The Tribunal after going through the reason towards filing of the appeals, vide Final Order No.S-646/ 749/KOL/1004 dated 29.10.2004 remanded the matter to the Adjudicating authority to take up the issue on de novo basis. 1.7 The Jt Commissioner of Customs took up the de-novo proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication has taken place beyond the period stipulated in sub-section (11) of section 11A of the Central Excise Act and there is no plausible explanation as to why it was not possible for the Adjudicating Authority to complete the adjudication process within the stipulated time. Thus, the impugned orders that have been assailed in all the 210 Excise Appeals would have been set aside. 2.4 In passing the said order, the Hon'ble Tribunal relied upon, amongst other, the Hon'ble Delhi High Court's order in the Customs matter of Sundar System Pvt. Ltd. Vs Union of India. The mention of the word where it is not possible to do so, in our opinion, does not enable the department to defer the determination of the notice 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. He would submit that in the present case there is an inordinate delay in passing the adjudication order without any plausible explanation which is sufficient to make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of Rs.52800. This is stated in the Para 4 of the de novo Order in Original. The fact that these persons are the residents of these areas is duly certified by the Gram Panchayat along with Election Card Number details [Page 58 to 64 of the Appeal book]. The licit possession of the gold was doubted on assumptions and presumptions without the Dept making any effort to ascertain the fact from these persons. Their statements were never recorded. 5. It is an admitted fact that the appellant also was carrying gold ornaments to the extent of 86.230 grams, which was seized and after prolonged litigation was released vide de novo OIO dated 13.07.2018, which was seized on 23.11.2001, that is after more than 17 years. The presence of ornaments would also show that the appellant are carrying on the business of jewellery making. 6. Admittedly, the gold bars and gold jewellery were seized near Ghughumari Bridge, in Cooch Behar District. This place cannot be said to be border area of Bangla Desh or any other foreign country. Therefore, the onus under Section 123 of the Customs Act 1962 has not been discharged by the Department. 7. The Ld Advocate points that even the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs (Appeals) Rules, 1982. Once (Appeal) is filed, The Commissioner (Appeal) shall give opportunity to the appellant to be heard. Commissioner (Appeal), on being shown sufficient cause, can give adjournment from hearing upto 3 times. The Commissioner (Appeal), may allow any grounds of appeal not specified in the appeal filed, provided he is satisfied that omission thereof was not willful or unreasonable. The Commissioner (Appeal), wherever possible, would decide the appeal within 6 month from the date of filing of appeal, by issue an order in writing, and shall communicate such order to the appellant, the adjudicating authority, the jurisdictional Chief Commissioner and Commissioner. The relevant provisions are contained in Sections 128 and 128A of the said Act and the Customs (Appeals) Rules, 1982. 13. I find that both under the Section 128A (4A) of the Customs Act 1962 as well as under the Customs Manual, it is specified that within the time-frame given to the Commissioner (Appeals), he 'shall' and 'would' decide the appeal within 6 months. This is subject to the clause 'wherever possible'. It is to be noted that the word 'may' is not used in both the places ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1). However, in respect of cases falling under sub-section (4) or sub-section (5), the Central Excise Officer shall determine the amount of duty within one year from the date of notice, where it is possible to do so. The show cause notice in this appeal was issued under sub-section (4) of section 11A. Thus, the Central Excise Officer had to determine the amount of duty within one year from the date of notice, where it was possible to do so. 11. What is important to note is that the show cause notice that was issued on 28.04.2015 was required to be adjudicated latest by 27.04.2016; 12. It was incumbent upon the Adjudicating Authority to determine the amount of duty within one year from 28.04.2015, where it was possible to do so. The discussion and findings in the impugned order start from paragraph 117 but no reason has been given in the impugned order by the Adjudicating Authority for not being able to determine the duty within the stipulated period of one year from the date of issuance of the show cause notice. 20. It would be seen from the aforesaid judgment of the Delhi High Court in Swatch Group that the High Court made it amply clear that the incorporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thereunder and other relevant factors. 27. The show cause notice, in the present case, was issued on 28.04.2015. It called upon the noticees to show cause within thirty days from the date of receipt of notice, failing which it was specifically provided that the matter would be adjudicated ex parte without any further communication. It is seen that the period one year from 28.04.2015 expired on 27.04.2016. Even if cause was not shown by the noticees to the said notice, the Adjudicating Authority should have proceeded to decide the matter ex parte, but what is seen is that the Adjudicating Authority even let this statutory time limit of one year pass without even adhering to the stipulation contained in the show cause notice that the matter would be decided ex parte even if no cause is shown within thirty days. It appears that it is only on 07.09.2016 i.e. almost after a period of five months after the expiry of one year that the first hearing was fixed by the Adjudicating Authority on 07.09.2016. 42. The aforesaid discussion would lead to the inevitable conclusion that the impugned order would have to be set aside only for the reason that the adjudication was not completed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under sub-section (8),- (a) within six months from the date of notice, where it is possible to do so in respect of cases 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). Customs Act 1962 Section 128A(4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed. The Customs Manual : Chapter 31 Appeal, Review and Settlement of Cases 2. Appeal to Commissioner (Appeal): 2.4 The procedure for filing of appeal before Commissioner (Appeal) is that the appeal is required to be filed in a Form No. CA-1 [under Section 128 of the said Act] and Form CA-2 [under Section 129D(4) of the said Act], as prescribed under rule 3 and rule 4, respectively, of the Customs (Appeals) Rules, 1982. Once (Appeal) is filed, The Commissioner (Appeal) shall give opportunity to the appellant to be heard. Commissioner (Appeal), on being shown sufficient cause, can give adjournment from hearing upto 3 times. The Commissioner (Appeal), may allow any grounds of appeal not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order could not be passed within specified time limit due to circumstance beyond control, would be fatal to the legality of the order. In VOS judgement, cited supra, the Delhi High Court has also held so and has noted that the delay is required to be viewed from the facts of the case. As per these decisions, when the reason for delay is not explained by way of plausible reasons in the Order in question, it fails to prove that "it was not possible to pass the order" within the time-frame. 19. In the present case, it has taken nearly Two years for the Commissioner (Appeals) to even take up the Personal Hearing proceedings on 28.08.2020 for the Appeal filed on 06.09.2018. The appellant has attended the same. Hence, there is no delay on their part. After this, the OIA was passed on 24.09.2020. No reason whatsoever has been given as to what necessitated the Commissioner (Appeals) to wait for nearly two years to grant the Personal Hearing and as to why the OIA could not be passed within the time frame of Six Months. I find that the OIA has been passed after 2 years as against the time-frame of Six months given under Section 128A(4A). 20. Based on the comparison of the statutory pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons are residents of the area gets proven from the Election Records and Gram Panchayat Certificates brought in by the appellant. I do not see that any serious efforts have been made to trace these persons and to record their statements. Admittedly the seizure was made inside Indian Territory. The appellant has also stated that he is carrying on business under the name of Gopal Jewellers. If proper effort was made to ascertain the veracity of facts stated by the appellant, the Revenue's case would have been in much better footing. Therefore, I find that the initial onus to prove its smuggled nature cast upon the Revenue, has not been discharged by the Revenue as also noted by the first Commissioner (Appeals) while he remanded the matter to the Adjudicating Authority. 24. One glaring visible error on the part of the Revenue is seizure of gold ornaments. The quantity seized is to the tune of 86.230 grams. From the Jewelry, it cannot be ascertained that the same is of foreign origin or not. Admittedly no chemical examination was undertaken either for the gold bars or for the ornaments. But still the appellant was made to run from pillar to post for the next mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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