Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (10) TMI 181

..... ion in the case of M/S RAJKAMAL INDUSTRIAL PVT LTD VERSUS C.C. -KANDLA [2019 (6) TMI 169 - CESTAT AHMEDABAD] where it was held that there is no legal authority with the department for dispensing with the issuance of SCN to the appellant, therefore, the impugned order passed without issuance of any SCN will not sustain We have dealt with the position of law even post amendment and it was held that it is necessary to issue SCN on the part of the Commissioner for extension of time limit in issuance of SCN under Section 110(2) - In the facts of the present case also neither any SCN was issued nor any hearing was given. The period of six months has already been expired, therefore, the impugned order extending time limit for issuance of SCN in the matter of seizure of the goods being passed without following the principles of natural justice will not sustain. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 11199 of 2019 - Final Order No. A/11895/2019 - 3-10-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Sh. Amit Laddha, Advocate for the Appellant Sh. G. Jha, Authorised representative for the Respondent ORDER The issue involved in the present case is that whether the Ld. C .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... d 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, 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 t .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ays 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 judgements, 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 & Jewellery. Vide Final Order No. 50283-50284/2019, the Tribunal 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 a .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... 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) and 124 of the Customs Act, 1962, without giving an opportunity of being heard to the affected party is illegal. Further, the requirement of issue of Show Cause Notice issued under Section 124 of the Customs Act in such a case was held to be a must relying upon the various judgments referred as above. Relying 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 wit .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... otice 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 Section 110 of the Customs Act has held in the various decisions discussed above. We have also seen the note sheet order of the Ld. Commissioner in this case. It is seen from the order that the Commissioner while extending the time period has only gone by the letter of DRI and not put up to him by his office without examining 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 ev .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||