TMI Blog2019 (6) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... Manish, Advocate for the Appellant Shri. K.J. Kinariwala, Authorized Representative for the Respondent ORDER PER: RAMESH NAIR The issue involved in the present case is that whether the impugned order passed for extending the time limit for issuing the SCN invoking the proviso to sub section 2 of section 110 of Customs Act, without issuing of SCN for this purpose is legal and correct. The brief facts of the case are that the appellant s imported goods were seized by the custom Authority, however an SCN as provided under Section 110(2) was not issued within the period 6 months. However, a letter dated 26.10.2018 was issued to the appellant by the Additional Commissioner, Custom House-Kandla, wherein the decision of the Commissioner was communicated that the period of issuance of SCN under proviso to Section 110(2) of Customs Act, 1962 has been extended up to 03.05.2019. Being aggrieved by the action of the department, the appellant filed the present appeal raising the question that whether the extension of time without issuance of any notice to the appellant is legal and correct. 2. Sh. Priyadarshi M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 2.3 of the order-in-original are reproduction of what is stated in the show cause notice. There is no finding recorded by the Commissioner that he was satisfied that investigation is being pursued seriously and there is a need for grant of more time for taking the investigation to its logical conclusion. There is no finding recorded that sufficient cause was made out by the Customs Officer. In view of the law laid down by the Apex Court and in view of the express words used in proviso to sub-section (2) of Section 110, the Commissioner could not have extended the time without recording his satisfaction on basis of the material on record that investigation is being pursued seriously and there is a need for more time for taking it to its logical conclusion. Merely because investigation is delayed, that is no ground for grant of extension of time so as to defeat the right created under sub-section (2) of Section 110. 11. Perusal of the impugned order of the Appellate Tribunal shows that it records findings of fact based on the material which was available on record. It is recorded that the inquiry with respect to live consignment is completed in May-June, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat exceeding of time limit cannot be made without recording any finding, accordingly, Revenue s appeal was dismissed. Similarly in the case of Gaunir Impex Pvt. Ltd. 2017 (3460 ELT 106 (MAD) the Hon ble High Court observed that even though a SCN for extension of time was issued by it is only before three days of the expiry of the period and seeking extension of time to reply the SCN was turned down. The Hon ble High Court has held that the department has not followed the natural justice, the writ petition was allowed. 6. In both the above judgments, the department has issued SCN even for extending the time limit for issuance of SCN under Section 110 however in the present case no SCN was issued. The department s submission is that after amendment in the Section 110, there is no need of issuance of SCN. The only requirement is that the Commissioner has to record the reason in writing while extending the time limit for issuance of SCN. We find that even the Commissioner has not recorded the reason properly in the order. However the same issue for the period even after the amendment in Section 110 has come up before the Tribunal-Delhi in the case of M/s Swees Gems Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange to the Customs Act, 1962 to further improve ease of doing business in cross border trade, and to align certain provisions with the commitments under the Trade Facilitation Agreement. To smoothen dispute resolution processes and to reduce litigation, certain amendments are being made, to provide for pre-notice consultation, definite timelines for adjudication and deemed closure of cases of tose timelines are not adhered to. Clause 90 of the Bill seeks, to amend Section 110 of the Customs Act so as to give power to extend the period for issuing Show Cause Notice in case of seized goods by a further period of six months to case in cases where no order for provisional release of goods has been passed. We find that similar issue has been decided by the coordinate bench of this Tribunal vide Final Order No. 75047-75048/2018 dated 17.1.2019 in the case of S.R.K. Metal Industries Pink Commercial, wherein it is held as under: Our attention was also drawn towards the decision of Sardar Kulwant Singh vs. Collector of Central Excise and Customs, wherein it is held that an order extending period of issue of Show Cause Notice under Section 110(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of the Show Cause Notice for the extension of the period of six months as prescribed under said sub-Section of Section 110(1) remains same from which the emanate right of Show Cause Notice to the affected party in furtherance of Principle of Natural Justice as his rights are being prejudicially affected. The amendment will not obliterate the aforesaid position of issuance of Show Cause Notice has discussed above, even after insertion of with new sentence in the provisions of Section 110(2) of the Act. In fact, we are of the view that after amendment not only the Show Cause Notice is required to be issued by the Adjudicating Authority, but he has also to give a reasoned order after hearing the Investigation Officer and also taking view of the affected party from whom seizure has been made as his personal right is being deprived of which emanate from the Section 110(1) of the Act that entitled him to got the goods returned which has been seized from his possession. This is also cleared from statements of objects in the Finance Act as discussed above. 13. In view of above, we are of the opinion that the impugned order is in violation in this provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
