TMI Blog2019 (8) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate show cause notice. The excuse of non- adjudication tendered by counsel for the Respondents might be ground to extend limitation by passing order in terms of proviso to Section 28 (9) or Section 28 (9A), however in the absence of passing any such order, the Respondent-Department cannot absolve itself from its statutory duty. Petition allowed. - CWP No.6862 of 2017 (O&M) - - - Dated:- 21-8-2019 - MR JASWANT SINGH AND MR LALIT BATRA, JJ. For The Petitioner (s) : Mr. Jagmohan Bansal, Advocate For The Respondent : Mr. Sourabh Goel, Advocate And Mr. D.D. Sharma, Advocate (CWP No.6862 of 2017) JUDGEMENT JASWANT SINGH, J . CM No.11566-CWP of 2019 in CWP No.6862 of 2017 Present CM has been filed under Article 226 read with Section 151 of CPC for placing on record copy of judgment passed by this Court in M/s Harkaran Dass Vedpal Vs. Union of India decided on 22.07.2019 reported as 2019-TIOL-1591-HC-P H-CUS as Annexure P-6 . For the reasons stated in the CM, the same is allowed and copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner during 2007-2009 imported Tow/Fibre to be used to manufacture yarn. The DRI, Ludhiana initiated an investigation against the Petitioner which culminated into Show Cause Notice dated 19.02.2011 ( Annexure P-1 ) alleging mis- declaration of description and value of goods. The Commissioner of Customs, Nhava Sheva, fixed the matter for hearing on 21.08.2012. The Petitioner requested for adjournment and Commissioner of Customs, Nhava Sheva again fixed the matter for hearing on 14.09.2012. The Petitioner appeared for personal hearing and filed Reply dated 13.09.2012 (Annexure P-3). The Adjudicating Authority heard the matter in September 2012 but did not pass order till March 2017. The Respondent-Commissioner of Customs, Ludhiana issued hearing Notice dated 23.03.2017 (Annexure P-5) for personal hearing on 30.03.2017. CWP No. 6865 of 2017 The Petitioner is engaged in the manufacture of Soap used for washing of clothes. The Petitioner during 2004-2006 imported Mixed Acid Oil/Acid Oil and Customs Authorities after framing assessment permitted clearance of goods. The DRI initiated an investigation against the Petitioner which culminated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, Petitioner filed interim reply and matter was heard but could not be decided due to pendency of one petition in Hon ble Delhi High Court regarding jurisdiction of DRI. In CWP No. 6865 of 2017, due to restructuring of cadre, post of Commissioner of Customs (Adjudication) was abolished so matter could not be adjudicated. CONSIDERATION 6 . The preliminary objection of Respondents regarding maintainability of writ in view of alternative remedy is devoid of merits and deserves to be turned down. In the case of Orient Ship Agency (Supra ), the main ground to challenge show cause notice was that it was issued invoking extended period of limitation which can be invoked in the event of collusion, mis-statement or suppression of facts. The said question is a mixed question of law and facts, therefore Bombay High Court refused to interfere and held that question of delayed adjudication has to be decided in each individual case. Judgment in the case of T.N. Krishna Iyer (Supra ) deals with prosecution, judgment in the case of Soval Solar Ltd. (Supra ) and Titagur Paper Mills (Supra ) deal with order passed by Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case (supra), where again belated order passed after issuing show cause notice, was set aside. 17. BSection 11A(11) of the Act provides that Central Excise Officer shall determine the amount of duty within six months in case notice has been under sub-section 1 thereof, whereas in the case of fraud, collusion, etc., the period prescribed is one year. No doubt, the words where it is possible to do so have been used, however, that will not stretch the period to decades as is in the cases in hand. 18. In Bhatinda District Co-op. Milk P. Union Limited case (supra), Hon ble the Supreme Court upheld a Division Bench judgment of this Court where opinion expressed was that where no period of limitation is provided for exercise of any power, any notice issued more than five years thereafter was held to be unreasonable. 19. For the reasons mentioned above, we find that the notices in the present cases having been issued more than decade back and the proceedings having not been concluded within reasonable time, the same deserves to be quashed It is not in dispute that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt finds that present petitions deserve to be allowed on both counts. 13 . The Judgment of GPI Textile dealt with Section 11A of Central Excise Act, 1944 and present matters relate to Section 28 of Customs Act, 1962 which is para materia with Section 11A of Central Excise Act. In the present petitions, show cause notices were issued in 2009 and concededly are still pending adjudication inspite of no stay on continuing of proceedings / liberty granted to proceed with the adjudication of the show cause notices. As per judgment of GPI Textile, show cause notice deserves to be quashed if it is pending adjudication beyond a reasonable period and in the present case, notice(s) are pending for more than 10 years which by no stretch of limitation can be held as reasonable period. In GPI Textile this court noticed judgment of Hon ble Supreme Court in the case of Bhatinda District Co-op. Milk P. Union Limited where 5 years period has been considered as reasonable period for revision. Retroactive application of the amended provisions of Section 28 of the 1962 Act 14 . From the bare pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the expiry of 3 years from 03.03.1998 i.e. date on which limitation period was prescribed. The ratio of the judgment in Ballarpur's case was followed by another Division Bench of this Court in State of Punjab Vs. Patiala Cooperative Sugar Mills Ltd. VATAP No. 110 of 2013 decided on 26.02.2014. The relevant portion of the judgment in Ballarpur's case, for ready reference, reads as under:- There is no dispute that prior to the amendment of provisions of Section 11 of the PGST Act w.e.f. 03.03.1998 there was no limitation provided for the assessing authority under Sub Section (1) of Section 11 to assess the amount of tax due from the dealer on the basis of returns if he was satisfied with the returns furnished by the dealer. There was also no limitation provided for the assessing authority to assess the dealer under sub section (3) of Section 11 of the Act and consideration of evidence produced, if any. However, the position was materially altered w.e.f. 03.03.1998 which provided that the assessing authority was required to pass an order of assessment on the basis of returns within a period of three years from the last date prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there exists no justification for giving any relief to the petitioner company even after taking into account the limitation concept on the ground that the petitioner company cannot be absolved of their liability to pay purchase tax as per their returns by filing misleading statements, cannot be countenanced and thus are set aside. As a sequal thereto, the impugned order dated 30.01.2005 ( Annexure P-15 ) qua the demand of tax for the assessment years 1995-96 and 1996-97 is set aside. Emphasis supplied The afore-stated Amendment of Section 28 came into force w.e.f. 29.03.2018 and in the case of present Petitioners till date no order has been passed. Applying the principles of retroactive amendment, the Respondent was bound to pass order by 28.03.2019 which Respondent has failed. The Respondent has failed to pass order within one year from the date of Show Cause Notice, assuming the date to be 29.03.2018 on the principle of retroactive operation; still further there is nothing on record / to a pointed query to even suggest that the said period was ever extended by one year by any senior officer in terms of the first proviso to Sub Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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