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TMI Blog2020 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... eized and enquiry commenced. Along with the offending consignment, other containers had also been seized. This was followed by a search by the Department of Revenue (Intelligence) (DRI) at the residential premises of the petitioner as well as in the premises of the concerned customs broker. Voluminous documents appear to have been seized by the DRI in the course of search. 2. A show cause notice dated 22.12.2011 in terms of Section 28(4) of the Customs Act, 1962 ('Act') was issued by the DRI demanding duty in respect of 84 bills of entry and three Import General Manifests including additional duty on consignments covered by 83 bills of entry already seized. 3. On 19.04.2012, the petitioner sought copies of various documents including copies of the seized documents to enable it to furnish its reply. The request was rejected by the Appraiser of Customs on 12.10.2012, following which, on 19.10.2012, the Commissioner of Customs issued summons for personal hearing. The issue of summons even prior to the furnishing of the material sought, was challenged in W.P.No.29526 of 2012 and W.P.No.29833 of 2012 by the petitioner in his personal capacity as well as in the capacity as power of att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of four weeks thereafter and the respondents directed to complete the adjudication after conducting a personal hearing. 6. The petitioner and the respondents have been in communication thereafter in regard to the supply of the documents. I specifically refrain from adverting to the details of the documents seized, supplied or sought for, since this is an exercise in fact finding that I am not inclined to undertake in exercise of powers under Article 226 of the Constitution of India. 7. Suffice it to say that the stand of the Department, both Customs and DRI, appear to have been that not all documents as sought for were available with them and that what was available had already been supplied. This was objected to by the petitioner on various occasions reiterating his request for the documents. 8. Pertinently, when W.P.No.899 of 2013 came to be disposed on 22.12.2014, neither the petitioner, though represented by the same learned counsel throughout the proceedings, nor learned Standing Counsel for the Customs Department thought it fit to bring to the notice of the Court, the pendency of W.P.No.29526 of 2019 between the same parties and addressing, substantially, the same cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Petitions were filed, till now, it is only in this Writ Petition that the petitioner seeks a quash of the show cause notice dated 22.12.2011. 12. Notice was ordered in this Writ Petition on 08.01.2020 and on 20.01.2020, the learned Panel Counsel appeared for the DRI agreed to supply the documents to the petitioner. On 28.01.2020, a representation was made that the concerned official of the DRI had met with an accident and extension of time was sought. On 04.02.2020 some records were produced and after examination of what had been directed to be supplied and what had, in fact, been furnished, the following order was passed by me: Notice was accepted in this matter on 08.01.2020, when Mr. V. Sundareswaran, learned Senior Panel Counsel sought some time to file written instructions/counter. When the matter came up on 20.01.2020, no counter was filed. However, since the Directorate of Revenue Intelligence had set out their comments/replies to the request for various documents, both relied and un-relied in communication dated 31.12.2019, this Court accepted Mr. Sundereswaran's request for a weeks' time to furnish two sets of the documents sought for and as set out under Seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levied or short-paid or erroneously refunded. -- (1) Where any duty has not been levied or has been short-levied 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) .......... (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, where it is possible to do so, in respect of cases falling under clause (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 sub- section(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2012 and 25.07.2013 was itself not within the knowledge of the respondents and they could well have proceed with the matter. 19. As regards what would construe a reasonable period for completion of proceedings where no time period or limitation had been set out in the relevant statute, Courts have held that such proceedings should be completed within a reasonable period, also taking note of the scheme of limitation prescribed in other provisions in that statute, where relevant. In Bhattinda District Cooperative Milk P. Union Ltd. (217 ELT 325), the Hon'ble Supreme Court considered what would be a reasonable period for reopening of an assessment under the Punjab General Sales Tax Act, 1948. Section 21 of that Act had not fixed any period of limitation for completion of the re-assessment. However, the Court applying the well settled proposition that where no period of limitation have been prescribed, the Statutory authority must exercise jurisdiction within a reasonable period took a cue from the periods of limitation prescribed for revisional jurisdiction, being three years, concluding that a reasonable limitation for completion of the re-assessment would be a period of five ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs prevalent. The authority appeared to have proceeded with broad aspect of the matter that non-receipt of the said notice cannot be said to be established by the noticee and based thereupon, recording findings that concerned authorized person of the petitioner Company, who also is the signatory to this petition, did receive the notice and therefore, it cannot be in any manner correct on the part of the petitioners to say that there was no knowledge of existence of show cause notice dated 22.8.2002. We are of the view that this contention needs to be examined in light of the principles underlying the law, which is by now settled that inordinate delay in adjudication results into denial of principles of natural justice and that proposition cannot be said to be nonest in the present proceedings. The receipt of notice dated 22.8.2002 and findings recorded thereon would pale into insignificance, if the same is to be viewed in light of observations of the Court in case of Siddhi Vinayak Syntex Pvt. Ltd (supra), Alidhara Textile Engineers Ltd. (supra) and other decisions cited as bar. 11.The ground of alternative remedy is also does not impress this Court in any manner, as there is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pting the challenge and quashing the impugned show cause notice as well as order, this is what the Bench says:- 23. Insofar as the show cause notice in the instant case is concerned, the same has been issued under section 11A of the Act. Proceedings under section 11A of the Act are adjudicatory proceedings and the authority which decides the same is a quasi-judicial authority. Such proceedings are strictly governed by the statutory provisions. Section 11A of the Act as it stood at the relevant time when the show cause notice came to be issued, provided for issuance of notice within six months from the relevant date in ordinary cases and within five years in case where the extended period of limitation is invoked. Section 11A thereafter has been amended from time to time and in the year 2011, various amendments came to be made in the section including insertion of sub-section (11) which provides that the Central Excise Officer shall determine the amount of duty of excise under sub-section (10) - "(a) within six months from the date of notice where it is possible to do so, in respect of cases falling under Sub-section (1); (b) within one year from the date of notice, where it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econditioners Pvt. Ltd. V. Union of India (2018 (12) GSTL 290), a Division Bench of the Bombay High Court considered the delay of fifteen (15) years from issuance of a show cause notice and thirteen (13) years after a hearing for fresh proceedings had been initiated by the revenue. This was also a case where the proceedings had been consigned to the call book. The petitioner in that matter succeeded on the ground that the inordinate delay had not been justified by the revenue. 28. In Transworld Shipping Services Pvt. Ltd. V. Government of India (381 ELT 178) a learned single Judge of this Court, and in Surendralal Girdharilal Mehta V. Union of India & Ors. (W.P.No.322 of 2015 dated 17.05.2018) the Calcutta High Court once again reiterated the settled position that an authority exercising power under the Statute can engage in an action that has the effect of disturbing the rights of a citizen only within the time stipulated and where such limitation was not stipulated, within a reasonable time. 29. In support of the argument that the challenge to the 2012 show cause notice in the present Writ Petition filed in 2020, is hit by laches and delay, learned Standing Counsel for the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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