TMI Blog2019 (7) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... est under Sub Section 8. The only outcome of non adjudication by the proper officer within one year without invoking of Sub-section (9A) or within the extended period of one year, if any, by a senior officer in terms of the first proviso to Sub Section (9) would be lapsing of notice, as provided in the second proviso to the Sub Section (9) of the amended Section 28 of the 1962 Act. The contention of the counsel for the respondents that amended Section 28 is not applicable in the case of Petitioners deserves to be rejected because amendment is not retrospective but it is certainly retroactive. Mandatory limitation would be applicable treating pending show cause notice as if issued on 29/03/2018. In the present writ petitions, the Respondent-DRI issued Show Cause Notice on 20.02.2009 ( P-6 ) 19.03.2009 ( P-9 ) for short levied custom duty and interest due to mis-declaration of description and value of goods relating to the two partnership firms/petitioners and at that point of time the proper officer was required to pass an order within one year i.e. By 2010 where it was possible to do so. However after the Amendment w.e.f. 29.03.2018, the Respondent was bound either to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice dated 20.02.2009 ( P-6 ) subject matter in CWP No. 10537 of 2011 raising a demand of short levied custom duty alongwith interest and proposing penalty against petitioner-M/s Harkaran Dass Deep Chand and one M/s Gayatri Sewa Sansthan, while issuing show cause notice dated 19.03.2009 ( P-9 ) subject matter in CWP No. 10889 of 2015 raising a similar demand qua petitioner- M/s Harkaran Dass Vedpal. The show cause notices were issued by DRI, however, it was answerable to Commissioner of Customs. The Petitioners filed present writ petitions assailing aforestated show cause notices on the ground of jurisdiction being issued by not proper officers in terms of Section 2 (34) of the 1962 Act; as also on the ground of limitation and delayed adjudication. 4 . The respondent DRI has filed reply on behalf of all the respondents justifying the assigning of the functions of a proper officer to the official of DRI for the purpose of Section 17 28 of the Customs Act 1962 including the issuance of the Notification promulgating the Customs (Amendment and Validation) Act as Act No.14 of 2011 retrospectively vesting the jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28(9) is not applicable in the case of Petitioners because it is prospective in nature and Explanation 4 to Section 28 specifically provides that notice issued prior to date of amendment of 2018 would be governed by old Section 28 of the Act. Department has filed SLP against judgment of this court in the case of GPI Textile and Hon ble Supreme Court has already issued notice. 8 . Before adverting to arguments of both sides, it would be profitable to notice amended and un-amended Section 28 of the Act and ratio of judgment of this Court in the case of GPI Textile (Supra). Un-amended Section 28 read as under: SECTION 28. Recovery of duties not levied or not paid or shortlevied or short-paid or erroneously refunded. - ( 1) Where any duty has not been levied or has been shortlevied or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- ( a) the proper officer shall, within one year from the relevant date, serve notice on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (a) of sub section (1); ( b) within one year from the date of notice , where it is possible to do so, in respect of cases falling under subsection( 4). ( 10) xxxxxxx ( 11) xxxxxxx Explanation 1, 2, 3 xxxxx W.e.f. 29/03/2018, Sub-section (9) of Section 28 has been amended and a new Sub-section (9A) alongwith explanation 4 has been inserted . Amended provisions are reproduced as under : ( 9) The proper officer shall determine the amount of duty or interest under sub-section (8),- ( a) within six months from the date of notice, in respect of cases falling under clause (a) of sub-section (1); ( b) within one year from the date of notice, in respect of cases falling under sub-section (4). Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may, having regard to the circumstances under which the proper officer was prevented from determining the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an order within one year. In such an eventuality, if the proper officer fails to pass an order within that extended one year period, then the natural consequence is lapse of the notice. However, if the proper officer for the reasons stated in Sub Section (9A) informs the person concerned for non determination of leviable duty and interest under Sub Section 8, then the initial period of one year for such short levied duty and interest to be determined by the proper officer shall commence from the date such reason ceases to exists. The notices issued for non levy, short levy etc., after 14.05.2015 were to be governed with the earlier provisions of Section 28 in view of Explanation 4 reproduced hereinabove. Ratio of Division Bench Judgment in GPI Textile: 9 . In the case of GPI Textile, a show cause notice dated 27/12/2001 was issued under Section 11A of the Act which remained pending for adjudication till 2016 and on 3.5.2017 Respondent issued notice of hearing which came to be challenged on the ground of inordinate delay in disposal of show cause notice. This court relying upon judgment of Gujrat High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notices even as per un-amended provisions of Section 28 of the 1962 Act could not be kept pending beyond a reasonable period and authorities were/are duty bound to pass orders within reasonable period of time. 10 . Having heard learned Counsel for the parties at length and scrutinized record of the case, the conceded position as emerging in the present petitions is that the DRI issued Show Cause Notice(s) on 20.02.2009 (Annexure P-6) and 19.03.2009 (Annexure P-9). The Petitioners filed writ petitions before this court assailing the show cause notices inter alia on the ground of jurisdiction of DRI to issue show cause notices. In the CWP No. 10889 of 2015 question of non adjudication of show cause notice was also raised. In none of writ petition, adjudication of show cause notice or its operation was stayed rather an interim order dated 01.09.2015 was passed in CWP No. 10889 of 2015 which is reproduced as under: Adjourned to 24.9.2015. However, the Respondents may proceed with the show cause notice in the meantime. This Court granted liberty to Respondents to proceed with Show Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a further period of one year by any officer senior in rank to the proper officer having regard to the circumstances under which proper officer was prevented from passing an order before the expiry/lapse of the initial stipulated one year. Still further in case any circumstance as noticed in Sub-section (9A) exists, the extended period of one year provided in Sub Section 9 shall commence from the date when such reason ceases to exist provided the proper officer informs the person concerned of the reason for such non determination of amount of duty or interest under Sub Section 8. Thus the only outcome of non adjudication by the proper officer within one year without invoking of Sub-section (9A) or within the extended period of one year, if any, by a senior officer in terms of the first proviso to Sub Section (9) would be lapsing of notice, as provided in the second proviso to the Sub Section (9) of the amended Section 28 of the 1962 Act. 15 . The contention of the counsel for the respondents that amended Section 28 is not applicable in the case of Petitioners deserves to be rejected because amendment is not retrospective but it is certainly ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995-96 and 1996-97 were issued on 26.04.2001 and 21.04.2001 respectively. The assessment orders under Section11(3) assessing demand of tax for a sum of ₹ 18,18,318/- and ₹ 10,51,851/- for the respective assessment years was passed on 27.07.2001. Therefore it is not disputed that even if the three years period of limitation was to be computed w.e.f. 03.03.1998, the assessment orders for both the assessment years were beyond the period of limitation as per the amended provisions of Section 11(3) of the Act . It is also not disputed that the learned Tribunal has on consideration of the provisions of PGST Act and ratio of judgments of cited case law has upheld the contention of the petitioner dealer that the amended period of limitation provided under Sub Section (3) being a piece of procedural law would be applicable to the pending cases like the present case. Learned Tribunal has also held that the assessments made by the assessing authority are not legally sustainable. It is also the admitted case of the Stat that the aforesaid findings of the Tribunal have not been challenged by the Sale Tax/Department/ Revenue. Thus, we do not consider it necessary to go into the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has made it clear that no Show Cause Notice shall be kept pending beyond a period of 1 year by the proper officer unless and until requirement of Sub-section (9A) are complied with or beyond the extended period of another one year by an order passed by any officer senior in rank to the proper officer detailing the circumstances which prevented the proper officer from passing the order within the initial period of one year. In the present writ petitions, the Respondent-DRI issued Show Cause Notice on 20.02.2009 ( P-6 ) 19.03.2009 ( P-9 ) for short levied custom duty and interest due to mis-declaration of description and value of goods relating to the two partnership firms/petitioners and at that point of time the proper officer was required to pass an order within one year i.e. By 2010 where it was possible to do so. However after the Amendment w.e.f. 29.03.2018, the Respondent was bound either to pass an order within one year i.e. by 28.03.2019 in terms of clause (b) of Sub Section (9) of amended Section 28 or within the extended time of one year in terms of first proviso , which is concededly not the case at hand or the extended period in terms of requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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