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TMI Blog2019 (6) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Manish Ld. Counsel appearing on behalf of the appellant submits that appellant was not issued any SCN and no opportunity was given to defend themselves against the proposed action for extension of time limit of issuance of SCN related to seizure of the goods. He submits that even though there is no explicit provision under Section 110 but the natural justice is the foremost requirement for any judicial proceeding, therefore by not issuing the SCN extension of time limit for issuance of SCN is illegal. He placed reliance on the following judgments: * M/s Swees Gems & Jewellery-Final Order No. 50283-50284/2019 * SRK Metal & Industries-Final Order No. 75047-75048/2019 * IJ Rao Assistant Collector of Customs 1989 (42) ELT 338 (SC) * Harbans Lal vs Collector of C.Ex. 1993 (67) ELT 20 (SC) * Gaunir Impex Pvt. Ltd. 2017 (346) ELT 106 (Mad.) * CCE vs Beauty Gem 2018 (359) ELT 209 (Bom.) 3. On the other hand, Sh. K. Kinariwala Ld. Assistant Commissioner (AR) app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inquiry with respect to live consignment is completed in May-June, 2014 when the reports were received from the laboratory. It is recorded that laboratory reports have been shown to Panch witnesses on 29th May, 2014. The Appellate Tribunal observed that the request for extension of time was very vague. The Appellate Tribunal was conscious of the fact that show cause notice dated 25th May, 2015 has been issued. In short, the Appellate Tribunal has recorded a finding of fact that sufficient cause was not made out by the Respondent. As stated earlier, the Commissioner has not recorded satisfaction in terms of proviso to sub-section (2) of Section 110 and what is held by the Apex Court in paragraph 13 of its decision in the case of I.J. Rao. 12.Therefore, on merits, we find no reason to interfere with the findings of fact recorded by the Appellate Tribunal that sufficient cause was not made out for extension of time. 13.Grant of extension of time as provided in the proviso affects the right which is created under sub-section (2) of Section 110 in favour of the person from whom the goods have been seized. If no notice under Section 124 is issued within a period of six months fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal after interpreting and discussing the difference in the provision of Section 110(2) before and after amendment came to the conclusion that the amendment is not such that the department is not required to issue SCN. The relevant findings of the Tribunal is as under: "6. We have considered the rival contentions and also perused the case record along with the investigation file submitted before the Bench by ld. AR. In these cases, the issue to be decided is as to whether after the amendment of Section 110(2) of Customs Act by Finance Act, 2018 is there any need for issuance of the Show Cause Notice before the extension is permitted by another six months on the reasonable ground by the Commissioner/adjudicating authority. To resolve the controversy, it will be appropriate to refer the Section 110(2) before the amendment and also after the amendment vide Finance Act, 2018. The same is reproduced as under : Section 110(2) before Section 110(2) after Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on these judgments, we find that the seized goods are required to be returned to the person from whom the seizure has been made of fact of expiry of six month under Section 110 of the Act without extension of time. Regarding the Revenue 8 C/53512-53513/18 contention that with effect of the amendment carried out in Section 110(2) of the Customs Act, the requirement of issuance of Show Cause Notice is dispensed with is without any basis. In fact, we find that after the amendment the Adjudicating Authority has to give the proper reasoning by way of reasoned order after examining the requirement for extension of time period as per sub proviso 2 of Section 110. Question as to whether the person claiming restoration of the goods under Section 110 of Act is entitled to notice before time is extending, this flows from the circumstances that this is a quasi judicial proceeding, and also it goes beyond the doubt that rights of a person are likely to prejudicially affected, he is entitled to opportunity to put forwarded his case before the Adjudicating Authority. Therefore, the person from whom the goods have been seized, is entitled to notice of the proposal before Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the such extension and recording his own finding. His finding is only two worded finding which is 'GC issued dated 26/06/2018' Sd- M Chandra This proves that there is no independent application of mind by the Commissioner (Port) for the extension of Show Cause Notice even by accepting his assertion that the only requirement is that the Principal Commissioner/ Commissioner of Customs made for the reasons to be recorded in writing, extends such period to further period not extending six months and inform the person from whom the goods are seized. We have also considered the submission made by Ld. Advocate that the aforesaid amendment has been brought with effect from 18/3/2018. Obviously, the amendment will not have its application from the retrospective date. The amendment has not been made with retrospective effect as is evident from the Finance Act, 2018. We also find that in case of Commissioner of Income Tax (Central-1), New Delhi vs. Vatika Township)[(2014) 0 SCC 670], Hon'ble Supreme Court has held that law enacted in absence of a provision in the statue about the same being with of retrospective effect in the Clause of Finance Act, the amendment will have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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