TMI Blog2018 (11) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... also been drawn and the test reports from the laboratory were received, but still the department thought it appropriate to sleep over the matter for five years. Issue as to what should be the reasonable time in the absence of statutory period prescribed in the Act for taking any action was considered by Hon'ble the Supreme Court in State of Punjab vs Bhatinda District Co-op. Milk P. Union Limited [2007 (10) TMI 300 - SUPREME COURT OF INDIA], wherein it was opined that five years would be the reasonable period in the absence of any time prescribed in the Act. The proceedings initiated by the respondents for framing of assessment are set aside - petition allowed. - CWP No. 4134 of 2017 (O&M) - - - Dated:- 31-8-2018 - Mr Rajesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid. Learned counsel for the petitioner further submitted that show cause notices issued for assessment deserve to be set aside on short ground of delay in issuance thereof, namely, the same have been issued more than five years after the goods were imported, provisionally assessed and released on payment of duty so assessed. In support of the plea, reliance has been placed upon judgment of this Court in CWP No. 10530 of 2017 M/s GPI Textiles Limited vs Union of India and others , decided on 2.8.2018. He further submitted that even the reports of testing from the laboratory cannot possibly be relied upon. In fact, zink skimming is a waste product which contains zink metallic as well as oxide form. It is such a product that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not dispute the fact that notices have been issued more than five years after the goods were released after provisional assessment, after drawing the samples. However, he submitted that due to the workload in the department some times the assessments are delayed. The same should not yield any benefit to the petitioner as he had mis-declared the goods. After hearing learned counsel for the parties, we find merit in the submissions made by learned counsel for the petitioner. It is evident from the record that import of goods in the present case was made by the petitioner more than five years prior to the issuance of notice and provisional assessment. More than five years prior to issuance of show cause notice, even the representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to call book in view of circular dated 14.12.1995 can be said to be a reasonable explanation. The opinion expressed was that the mandate of law cannot be diluted by issuing circular especially when there is no power to issue such directions regarding transfer of cases to call book. Relevant paras 23 and 24 thereof are extracted below:- 23. Insofar as the show cause notice in the instant case is concerned, the same has been issued under section 11A of the Act. Proceedings under section 11A of the Act are adjudicatory proceedings and the authority which decides the same is a quasi-judicial authority. Such proceedings are strictly governed by the statutory provisions. Section 11A of the Act as it stood at the relevant time when the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the notice in respect of cases falling under sub-section (4) or sub-section (5). When the legislature has used the expression where it is possible to do so , it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witnesses may have to be examined, the record of the case may be very bulky, huge workload, nonavailability of an officer, etc. which are genuine reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the provisions of law, the explanation put forth by the respondents for the delay in concluding the proceedings pursuant to the show cause notice 3.8.1998 cannot be said to be a plausible explanation for not adjudicating upon the show cause notice within a reasonable time. In view of the settled legal position, as propounded by various High Courts, with which this court is in full agreement, the revival of proceedings after a long gap of ten to fifteen years without disclosing any reason for the delay, would be unlawful and arbitrary and would vitiate the entire proceedings. 14. In the aforesaid case, Gujarat High Court had set aside the order passed after a long delay in pursuance to the show cause notice issued. 15. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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