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TMI Blog2023 (9) TMI 1675X X X X Extracts X X X X X X X X Extracts X X X X ..... n '' Wherever, it is possible, to do so''. Prima facie, it appears that the Department was not precluded from adjudicating the show cause notice beyond six months. If it is the case of the Department that the pendency of the Appeal before CESTAT against the Order-in-Appeal dated 30.08.2015 was a reason for not passing orders earlier, it remains to be explained, as to why, the impugned order has been passed eventhough the petitioner's appeal is still pending adjudication before CESTAT - This ought to have been explained properly in the impugned order. Admittedly, the impugned order passed by the third respondent is bereft of such reasons. Only in the counter affidavit filed in this Writ Petition, the respondents have sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was interpreted as follows:- '' 33. The phrases ''as far as possible and ''as far as practicable'' appear in other statutes as well came up for consideration before the Apex Court in C.N.Paramasivam and another Vs. Sunrise plaza; (2013) 9 SCC 460. It is observed that the words 'possible'' and ''practicable'' are more or less interchangeable along with the other words such as feasible, performable etc. The incorporation of such words gives certain degree of flexibility to the Department such as if the recourse unpracticable or not possible, the authorities can deviate from what was required to be done in terms of the statute. When the challenge is laid to the act of the authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of the taxpayer but also to the exchequer. '' 2.1 It is further submitted that identical provision came up for consideration before the Hon'ble High Court of Delhi, in the case of Sunder System Pvt. Vs. Union of India and others, rendered in W.P.(C) No.8675 of 2017, which was also considered by the Division Bench of Delhi High Court, in the decision referred to supra, viz., in Swatch Group India Pvt. Ltd. It is, therefore, submitted that Explanation 4 to Section 28 of the Act as it stood at the time of issuance of show cause notice would govern, hence, the delay in adjudication of show cause notice is fatal. 2.2 It is further submitted that Show Cause Notice dated 26.12.2014 was issued in respect of Bill of Entry No.702141 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the petitioner on the earlier occasion in respect of Order-in-Original dated 12.05.2015. 4. I have considered the arguments advanced by the learned counsel for the petitioner and the respondents. 5. The principle ground, on which, the impugned order is attacked is that it has been passed beyond the limitation period prescribed under Section 28 (9) of the Act. Section 28 (9) of the Act has been amended. When the Show Cause Notice dated 26.12.2014 was issued, Section 28 (9) of the Act, provision read differently. At the time of adjudication of the said Show Cause Notice dated 26.12.2014 vide impugned Order-in- Original No.87695/2022, dated 31.01.2022, Section 28 (9) of the Act read differently. They read as under:- During the issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f no notice had been issued]. 5.1 The above amendment in the 2nd Column came into force only on 29.03.2018. Explanation 4 to Section 28 was also amended. In the year, 2018, Explanation 4 read different from Explanation 4, as it reads now. They read as under :- Explanation 4: For removal of doubts, it is hereby declared that, in cases, where notice has been issued for non-levy not paid, short-levy or short-paid or erroneous refund after 14th day of May, 2015, but before the date on which, the Finance Bill 2018 receives the assent of the President, they shall continue to be governed by the provisions of Section 28 as it stood immediately before the date on which, such assent is received. Explanation 4: For the removal of doubts, it is he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned properly in the impugned order. Admittedly, the impugned order passed by the third respondent is bereft of such reasons. Only in the counter affidavit filed in this Writ Petition, the respondents have stated that the delay was on account of the pendency of the Appeal before the CESTAT for the earlier Bills of Entry, dated 10.10.2014. That apart, the impugned order has also not factored, as to how, the demand in respect of earlier Bills of Entry No.7021417, dated 10.10.2014 which was part of the Show Cause Notice dated 26.12.2014 has culminated in the impugned Order-in-Original dated 31.01.2022. 6. In these circumstances, Court is inclined to interfere with the impugned order by quashing the same and remits the case back to the third re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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