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2019 (10) TMI 1401 - HC - CustomsJurisdiction - power of DRI to issue Show Cause Notice - delayed/no adjudication of impugned Show Cause Notice - HELD THAT:- As per Section 28(9) of Customs Act 1962, an officer senior in rank to Proper Officer having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under 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 - As per Section 28(9A) of 1962 Act, as re-produced hereabove in Para-11, for the reasons stated in clause (a) to (d), the Proper Officer shall inform concerned person the reason for non-determination of duty or interest under sub-section (8) - As per sub-section (9) of Section 28 of 1962 Act, an officer senior in rank to Proper Officer may extend period and he is required to record the circumstances which prevented Proper Officer from determining the amount of duty. As per sub-section (9A) of Section 28 of 1962 Act, the Proper Officer for the reasons specified under clause (a) to (d) may extend period and he is bound to inform the concerned person. We are not impressed with the argument of respondents that neither is there requirement to afford opportunity of personal hearing nor communication of extension order to the party concerned. As per respondent extension order is an administrative order and does not affect rights of the party. On the face of it, the contention of the respondent is unreasonable, fallicious and contrary to settled law. As per the amended Section 28(9) if show cause notice is not adjudicated within one (01) year, it stands vacated, thus right of party is certainly affected and he has every right to know reason of extension of period of adjudication of show cause notice. The vacation/lapsing of time period for adjudication of show cause notice results into immunity to party from duty liability proposed in the show cause notice. We are not oblivious of the fact that if extension order is not communicated, possibility of passing ante dated order cannot be ruled out. In the case in hand, the respondent is vehemently pleading that petitioner is governed by un-amended Section 28(9) of the 1962 Act as well argued that Chief Officer i.e. officer Senior in rank to Proper Officer- Commissioner of Customs has passed an order under amended section 28(9) of the Act. Concededly, neither opportunity of hearing was granted prior to the purported extension order dated 26.03.2019 passed under Section 28(9) of 1962 Act nor said order was communicated. As per respondent itself order dated 26.03.2019 has been passed under Section 28(9) of the 1962 Act even though basis of said order is Clause (c) of Section 28(9A) of the 1962 Act. Clause (c) of Section 28 (9A) can be invoked in case an interim order of stay is passed by Appellate Tribunal or High Court or Supreme Court. In the present case, matter is pending before this Court and any stay was never granted rather petition itself has been filed seeking quashing of Show Cause Notice on the ground of non-adjudication - Under Section 28 (9) as well Section 28 (9A) of 1962 Act, competent officer is bound to pass some order assigning reasons/circumstances for non-adjudication and communicate to concerned person. The officer passing order is further bound to afford opportunity of hearing prior to passing extension order and in the absence of passing reasoned order coupled with its communication to concerned person, the Respondent-Department cannot absolve itself from its statutory duty mandated under Section 28(9) of 1962 Act. Petition allowed.
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