TMI Blog2020 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... m injunction granted in W.P.No.29833 of 2012 was in force between 31.10.2012 and 25.07.2013 only (268 days). In any event, the Miscellaneous Petitions had come to be dismissed and the injunction vacated on 25.07.2013 for the reason that no notice had been served upon the respondents by the petitioner, either privately or by service through Court. Thus the existence of the injunction between 31.10.2012 and 25.07.2013 was itself not within the knowledge of the respondents and they could well have proceed with the matter. The fact that the petitioner has challenged the SCN only now, in 2020, only indicates to me that the petitioner fully intended to comply with and respond to notices and participate in adjudication proceedings only repeatedly requesting for relied upon and other materials - It is unnecessary to state that an assessee is entitled to all documents, both relied upon as well as unrelied upon including those that were seized in the course of search, in order to enable it to respond to the show cause notice. This is not an unreasonable request. Thus the elapse of time from 2013 till January, 2020 when the show cause notice was challenged does not, in my view, indicate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent in both the Writ Petitions. However, in W.P.No.29526 of 2012, the Additional Director General, Directorate of Revenue Intelligence was impleaded by this Court vide order dated 24.10.2019 in WMP No.29666 of 2019. Notice was issued and an order of interim injunction granted in W.P.No.29526 of 2012 on 31.10.2012. W.P.No.29833 of 2012 filed by the petitioner as authorised signatory of Majestic Impex came to be dismissed by a learned single Judge of this Court on 07.11.2012 on the ground that only summons for personal hearing was challenged by the petitioner, who had not chosen to challenge the show cause notice dated 22.12.2011 that constituted the basis of the proceedings. 4. On 25.07.2013, this Court dismissed the Miscellaneous Petitions in M.P.No.1 and 2 of 2012 in W.P.No.29526 of 2012 on the ground that though notice through Court as well as private notice had been ordered on 04.07.2013, no steps had been taken and neither was batta paid. The injunction as against summons for personal hearing dated 19.10.2012 was thus in force between the period 31.10.2012 and 25.07.2013, a period of 268 days. Pleadings were thereafter completed in W.P.No.29526 of 2012, that ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, come up before me on some occasions. I had impleaded the DRI vide order dated 24.10.2019 in WMP No.29666 of 2019 in view of the categoric assertion of the Customs Department to the effect that the documents sought for by the petitioner had been seized by the DRI and were lying only with then and thus it was only the DRI, if at all, that could furnish copies of the same to the petitioner. Even before me, there was much back and forth by the parties on what was available, what had been sought for and what had already been supplied. In order dated 13.12.2019, the learned single Judge reiterated the directions in order dated 22.12.2014, fixing a specific time schedule for the collection of the documents by the petitioner, filing of reply to show cause notice, completion of enquiry and adjudication thereof. At paragraph 14, the learned Judge reserves the right of the petitioner to the defence raised regarding abatement of show cause notice in the light of Section 28(9) of Customs Act stating that the same would be decided by the first respondent. 9. On 23.12.2019, the petitioner writes to the Additional Director General, DRI again reiterating the request for supply of documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .01.2020 'for compliance', when Mr. Sundereswaran sought time on the ground that the Officer concerned had met with an accident. 2. Three (3) sets of Documents are filed today. All relied upon material barring those in serial Nos.1 and 2 are stated to have been filed. Un-relied documents at serial No. (a), (b) (c) are stated to be unavailable. Document at serial no.(d) is stated to be available but has not been filed. Adverse inference is thus drawn in this regard. The aforesaid is recorded. 3. Let the petitioner verify and confirm the same. 4. List on 12.02.2020. 13. On 12.02.2020, the petitioner filed a verification report in regard to the documents sought for, supplied and yet pending supply. Pleadings were thereafter completed in the Writ Petition by way of counter and rejoinder and the matter taken up for final hearing on 10.03.2020 and finally on 20.07.2020. On 20.07.2020, I had expressed my mind to the effect that I was not inclined to examine the factual position in regard to supply of documents since evidently this is a very vexed area involving disputed facts. It appears very clear to me that the parties will never ever reach a position of tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of duty or interest under sub-section (8), extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year: Provided further that where the proper officer fails to determine within such extended period, such proceeding shall be deemed to have concluded as if no notice had been issued. 16. The customs department initially anticipated that the petitioner would seek the benefit of the provision as amended on 29.03.2018, which omits the phrase where it is possible to do so . However, by virtue of an amendment in 2020 it was clarified that the 2018 amendment was prospective, operating only with effect from 01.04.2018. Both learned counsel before me concur upon this position. Thus, the admitted legal issue to be decided is whether impugned notice dated 22.12.2011 is barred by limitation by application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that case, since the notice itself had been issued after a period of five and half years, it was held to be invalid. 20. In J.M.Baxi Co., V. UOI (336 ELT 285), a Division Bench of this Court considered the validity of an order of adjudication passed after eight years of discharge of cargo and five years after issuance of a show cause notice. At paragraph 17, the Bench states as follows: 17. In the order of adjudication dated 7-1-2000, there is nothing to indicate as to what transpired from 23-5-1995 up to 7-1-2000, except for two dates. One is a letter dated 23-10-1999 where the appellant sought an injury to be inflicted upon them voluntarily, reminding the Department of the pendency of the show cause notice. The next date is 4-1-2000 when a personal hearing took place. Therefore, the order of adjudication certainly had not taken place within a reasonable period. Though the statute does not prescribe a period of limitation for passing an order of adjudication, the law is well settled that anything in respect of which no period of limitation is prescribed, should be done at least within a reasonable time. What is reasonable time, would depend upon the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner, as there is clear violation of principles of natural justice, which cannot be overlooked by any authority, therefore, this ground is also not available to respondent. 12.Learned counsel for the respondent attempted to develop the ground for resisting this petition based upon plea of prejudice. We C/SCA/18235/2017 JUDGMENT are of the view that said ground would also not be available to the respondent, as notice dtd 22.8.2002 had not been acted for long long period of 17 years, that in itself is sufficient to accept and justify the plea of prejudice without any further probing into the matter. The resurrection of notice dated 22.8.2002 assuming for the sake of convenience without admitting that was admittedly after subsequent notice, then also, in view of established principles of law and provisions of statute, the said resurrection would be not permissible in light of decisions cited hereinabove. Both the notice and order-in-original were quashed as being violative of principles of natural justice. 22. In Premier Ltd. V. UOI (W.P.No.12780 of 2016 dated 13.02.2017), a Division Bench of the Bombay High Court considered a challenge to the show cause cum- dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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) or sub-section (5). 24. Thus, with effect from the year 2011 a time limit has been prescribed for determining the amount of duty of excise where it is possible. It cannot be gainsaid that when the legislature prescribes a time limit, it is incumbent upon the authority to abide by the same. While it is true that the legislature has provided for such abiding by the time limit where it is possible to do so, sub-section (11) of section 11A of the Act gives an indication as to the legislative intent, namely that as far as may be possible the amount of duty should be determined within the above time frame, viz. six months from the date of the notice in respect of cases falling under Sub-section (1) and one year from the date of the notice in respect of cases falling under sub-section (4) or sub-section (5). When the legislature has used the expression where it is possible to do so , it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in 2020, is hit by laches and delay, learned Standing Counsel for the Customs Department relies on the following decisions: i) New Delhi Municipal Council V. Pan Singh and Ors. (AIR 2007 SC 1365) ii) State of Rajasthan V.D.R. Lakshmi((1996) 6 SCC 445) iii) Chairman U.P. Jal Nigam V. Jaswat Singh ((2006) 11 SCC 464). 30. In the aforesaid decisions, the Hon ble Supreme Court holds that though there is no period of limitation prescribed for filing a Writ Petition under Article 226 of the Constitution of India, a Writ Petition ordinarily should be filed within a reasonable time. 31. The fact that the petitioner has challenged the SCN only now, in 2020, only indicates to me that the petitioner fully intended to comply with and respond to notices and participate in adjudication proceedings only repeatedly requesting for relied upon and other materials. 32. It is unnecessary to state that an assessee is entitled to all documents, both relied upon as well as unrelied upon including those that were seized in the course of search, in order to enable it to respond to the show cause notice. This is not an unreasonable request. Thus the elapse of time from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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