TMI Blog2022 (11) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... ces can be confirmed. Reliance placed on the Provisions of Section 28(9) of the Customs Act, 1962, is also misplaced. The time line prescribed under the aforesaid provision is elastic and not rigid. It cannot be invoked by the appellant to assail the continuance of the show cause notice proceeding dated 27.01.2005 as it is based on the decision of the learned Single Judge in W.P.No.18918 of 2000 vide order dated 24.06.2005. The hands of the adjudicating authority cannot be tied and shackled. If any error is committed by an adjudicating authority while passing it is always open for an assessee to assail the same in an appellate proceeding under the Act. The appellant has not made out any case for interfering with the order of the learned Single Judge of this Court - Appeal dismissed. - W.A.No.209 of 2022 And C.M.P.No.1558 of 2022 - - - Dated:- 1-11-2022 - Honourable Mr.Justice S.Vaidyanathan And Honourable Mr.Justice C.Saravanan For the Appellant : Mr.R.Senniappan for M/s.Ganesh and Ganesh For the Respondent : Mr.Pramod Kumar Chopda Senior Standing Counsel JUDGMENT The importer is the appellant in this writ appeal. This writ appeal has been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted therein and in the affidavit filed therewith the High Court will be pleased to modify the order dated 29.09.2008 in the above writ petition by deleting the observation to consider, the order of this Hon'ble Court dated 20.06.2005 passed in W.P.No.18918 of 2000 etc. Rev.Aplw.SR.No.13749 of 2013 Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to review the order dated 29.09.2008 passed in W.P.No.19153 of 2008 and pass such further order as this Hon'ble Court may deem fit and proper in the circumstances of the case. M.P.No.1 of 2013 in Rev.Aplw.SR.No.13749 Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to condone the delay of 1514 days in filing the review petition and pass such further order as this Hon'ble Court may deem fit and proper in the circumstances of the case. 6. The learned single Judge, after considering the arguments advanced by the appellant and the respondent has modified the order with the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962. Section 28(9) of the Customs Act, 1962, which reads as under: SECTION 28. Recovery of duties not levied or short-levied or erroneously refunded (9)The proper officer shall determine the amount of duty or interest under subsection (8),- (a) within six months from the date of notice in respect of cases falling under clause (a) of subsection (1); (b) within one year from the date of notice in respect of cases falling under sub- section (4). 9. He specifically placed reliance on the limitation contained therein. He, therefore submitted that there is no basis on which the show cause notice proceeding beyond the period of limitation prescribed under section 28(9) can be preceded long after the limitation expired. 10. The learned counsel for the respondent on the other hand submits that the decision of the court in W.P.No.18918 of 2000 dated 24.06.2005 was not applicable to the facts of the case. Therefore, the Customs Department was constrained to file the Miscellaneous Petitions to modify the order dated 29.09.2008 and for review as mentioned above. That apart, it is submitted that the appellant sought for cross examination of its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2005. The order dated 24.06.2005, has not laid down the law, so as to have a binding of force of law as a precedent. 15. That apart, reliance placed on the aforesaid order dated 24.06.2005 in W.P.No.18918 of 2000, shows it was disposed of at the time of admission on 24.06.2005. 16. W.P.No.19153 of 2008 was also disposed on 29.09.2008 (ex parte), at the time of admission, as is evident from a reading of the aforesaid order dated 29.09.2008. 17. Therefore, the Review Application filed by the respondent, the Commissioner of Customs and the miscellaneous applications for interim reliefs were rightly considered by the learned Single Judge by modifying the order. 18. That apart, the petitioner cannot force the Department to summon petitioners own directors/employees for cross-examination. The Department has merely relied upon the documents authored by those directors/employees. If it is the case of the appellant that documents relied upon were fabricated, it is open for the appellant to produce them as a witness and let in evidence. 19. The Appellant cannot force the department to issue summons to its directors/employees to scuttle the adjudication proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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