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TMI Blog2023 (9) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice has not been adjudicated as yet. The petitioners also impugn the common letters dated 20.01.2023 and 06.03.2023 (hereafter 'the impugned letters') issued by respondent no. 2 [hereafter 'the Commissioner (Adjudication)'] calling upon the petitioners to appear for hearing in respect of the impugned show cause notice. 2. It is contended by the petitioners that the adjudication of the impugned show cause notice is barred by limitation as the same has not been adjudicated for almost fourteen years. The petitioners have also challenged the constitutional validity of Section 97 of the Finance Act, 2022 (hereafter 'the Finance Act') as violative of Articles 14, 19(1)(g) and 300A of the Constitution of India. The petitioners claim that the said provision authorising an officer of the Directorate of Revenue Intelligence (hereafter 'the DRI') to act as a proper officer under the Customs Act, 1962 (hereafter 'the Customs Act') cannot have any retrospective operation. The petitioners also claim that the assessees whose cases were decided prior to enactment of the Finance Act would be granted the benefit of the decision of the Supreme Court in M/s Canon India Pvt. Ltd. v. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the years 2000 to 2005, the petitioners were engaged in the business of exporting readymade garments and leather goods to buyers in Russia under the Rupee-Rouble Scheme, as well as to other overseas buyers under the Drawback Scheme. The impugned show cause notice indicates that the officers of the Delhi Zonal Unit of the DRI received intelligence that certain Indian companies had made fraudulent exports of readymade garments, leather goods and fabrics to certain Russian entities with the sole intent to avail various export incentives including drawback under the Duty Entitled Pass Book Scheme (hereafter 'the DEPB'). It was alleged that the Russian companies had not imported any goods from the exporters in question and the same were diverted to other countries. The concerned officers also claimed that the intelligence received also suggested that the Indian exporters were inflating their invoices to avail higher amount of export incentives. According to them, the petitioners as well as sole proprietorship concern of Sh. Vivek Wadhwa (M/s Bright International) were involved in the aforesaid activities. 7. In view of the intelligence received, the concerned officers of the DRI con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as the list of dates as furnished by the petitioners. Period from 30.04.2009 to 21.07.2016 13. Admittedly, the impugned show cause notice was received by the petitioners and they requested for copies of the relied upon documents (hereafter 'the RUDs'), as referred in Annexure-B to the impugned show cause notice. They specifically demanded the authenticated copy of the entire record seized and also sought cross-examination of the First Secretary (Trade Embassy of India) whose letters were relied upon in the impugned show cause notice. There is no serious dispute that the said documents were not immediately provided to the petitioners. The petitioners claim that they continued to send letters with effect from 02.06.2009 seeking copies of the RUDs to enable them to respond to the impugned show cause notice but were not provided copies of the RUDs' as sought by them. Even according to the respondents, no further proceedings were conducted at the material time. 14. The respondents state that on 09.08.2010, the Commissioner of Central Excise (Adjudication)-I was appointed as the common adjudicating authority for the said case by an Order F.No. 437/39/2010-Cus-IV issued by the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not indicate that the said documents were provided to the petitioners. 20. The petitioners sent reminder letters dated 01.05.2011 and 14.05.2011 requesting for the RUDs. It is apparent that the RUDs were not provided to the petitioners. This is evident from the list of dates and events provided by the respondents, which indicate that on 24.02.2012, the Commissioner (Adjudication) had informed the Chief Commissioner of Customs, Delhi that despite several reminders, the DRI had not provided the RUDs as requested by the petitioners. The Commissioner (Adjudication) called upon the Chief Commissioner to take up the matter with the Director General, DRI. 21. The petitioners state that they continued to write letters from 15.12.2010 to 24.07.2013 requesting for copies of the RUDs. It is clear from the counter affidavit that the RUDs as sought for by the petitioners were not provided to them. The counter affidavit indicates that on 23.08.2013, the Commissioner (Adjudication) had made a further request to the Chief Commissioner to take up the matter with the Director General, DRI regarding non furnishing of RUDs to the petitioners. The petitioners claim that by an order dated 26.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the representatives of the petitioners had visited the office of the DRI on 02.12.2013 and had attempted to segregate the documents as claimed. 25. The list of dates and events as mentioned by the respondents in their counter affidavit indicate that certain communications were exchanged during the period continuing up to 08.05.2015. The petitioners continued to make request for the RUDs, some of which were supplied. They also filed their interim reply to the impugned show cause notice. The respondents also state that in October, 2013, a personal hearing was afforded by the Commissioner (Adjudication) to various noticees. Apart from mentioning that certain communications were exchanged, nothing else took place during the said period. Thus, for all intents and purposes, the proceedings in relation to the impugned show cause notice did not progress. 26. The respondents state that on 08.05.2015, the office of the Commissioner of Central Excise (Adjudication)-I was abolished pursuant to cadre restructuring and the files were returned to the Jurisdictional Commissionerate. Thereafter, for a period of one year, that is, till 04.05.2016, the respondents did not take up the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer to the officers of DGDRI, DGCEI and Custom (Preventive). The Customs Act was amended retrospectively and thus, the impugned show cause notice could not be adjudicated prior to the aforesaid amendment to the Customs Act. He states that, thereafter, this Court in Mangali Implex & Ors. v. Union of India & Ors 2016 (335) ELT 605. had held that the department could not seek to rely on the amended Section 28(11) of the Customs Act as authorising the officers of Customs, DRI/DGCEI to exercise powers in relation to non levy, short levy or erroneous refund for the period pertaining prior to 08.04.2011. 31. It is alleged that the impugned show cause notice could not be adjudicated after the decision in the case of Mangali Implex & Ors. v. Union of India 2016 (335) ELT 605. However, the said decision was subsequently stayed by the Supreme Court. He submitted that in the meanwhile the Board issued instructions on 21.07.2016 for placing the show cause notices issued prior to 2011 in the Call Book and accordingly, on 21.07.2016, the impugned show cause notice was placed in the Call Book. 32. It is stated that the impugned show cause notice was retrieved from the Call Book on 06.02.2017 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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