TMI Blog2023 (9) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the impugned show cause notice. It is not disputed that during this period there was no impediment for the concerned officers to proceed with the adjudication. The fact that various communications were sent by the Adjudicating Authority to the concerned officers of the DRI for supply of the RUDs is clearly no ground to justify that it was not possible to adjudicate the impugned show cause notice during the said period. In view of the above, it cannot be accepted that it was not feasible or possible for the Adjudicating Authority to adjudicate the impugned show cause notice till 06.02.2017. It is stated that the impugned show cause notice was retrieved from the Call Book on 06.02.2017 in view of the instructions dated 06.01.2017. However, the Board opined that it was not feasible to adjudicate the notices issued prior to 08.07.2011 and therefore the said impugned show cause notice was not adjudicated. It is stated that it was re-entered in the Call Book and was retrieved from the Call Book on 23.01.2023 - Admittedly, the petitioners were not informed that the impugned show cause notice was put in the Call Book. It is at once clear that the period within which the impugned sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act would be granted the benefit of the decision of the Supreme Court in M/s Canon India Pvt. Ltd. v. Commissioner of Customs 2021 SCC OnLine SC 200 but those assessees such as the petitioners, whose cases have not been decided would be covered under the retrospective amendment as introduced by the Finance Act. 3. However, Ms. Jha, learned counsel appearing for the petitioners has confined the challenge in the present petitions to the impugned show cause notice and the impugned letters on the ground of delay while reserving the rights to challenge the constitutional validity of Section 97 of the Finance Act, 2022 at a later stage, if necessary. 4. Mr. Harpreet Singh, learned counsel appearing for the respondents had countered the submission that the delay in adjudication of the impugned show cause notice was fatal to the proceedings. He contended that the impugned show cause notice involved complicated issues and it was not practicable to complete the adjudication within the period of one year as contemplated under Section 28(9) of the Customs Act. He contended that Section 28(9) of the Customs Act, as in force prior to 29.03.2018, required the concerned authority to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in the aforesaid activities. 7. In view of the intelligence received, the concerned officers of the DRI conducted searches in various premises on 27.10.2006 in the belief that the goods liable for confiscation and / or any documents or things relevant to any proceedings under the Customs Act were secreted at those premises. The office premises of the petitioners as well as the residential premises of Sh. V.P. Aggarwal, one of the Directors of the petitioners companies, were amongst the premises searched on 27.10.2006. 8. It is stated that, thereafter, the investigation continued and summons were issued under Section 108 of the Customs Act to various persons including Sh. Sudhir Gulati and Sh. Vishnu Prasad Aggarwal. It is stated that Sh. Sudhir Gulati was the Director of M/s Gala International Pvt. Ltd. and M/s Ganesh Overseas Pvt. Ltd. [Petitioners in W.P.(C) No. 7292/2023 and W.P.(C) No. 7316/2023] and Sh. Vishnu Prasad Aggarwal, at the material time, was the Director of the petitioner companies. 9. It is stated in the impugned show cause notice that during the investigation proceedings, Sh. V.P. Aggarwal voluntarily deposited ₹35,00,000/- (₹15,00,000/- in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointed as the common adjudicating authority for the said case by an Order F.No. 437/39/2010-Cus-IV issued by the Central Board of Excise and Customs (hereafter the CBEC ). Admittedly, for almost sixteen months, the petitioners were neither provided the documents as sought by them nor any hearings were held. In the counter affidavit, the ADG, DRI and the Commissioner (Adjudication) accept that on 13.09.2010, the petitioners had requested the Commissioner of Central Excise (Adjudication)-I to arrange for the supply of the RUDs. 15. The respondents state that on 28.09.2010, a notice fixing the personal hearing on 07.10.2010 was issued to the petitioners. It is material to note that even at that stage the RUDs as sought by the petitioners were not provided to them. The counter affidavit indicates that on 04.10.2010, a letter was issued requesting the ADG, DRI to supply the copies of the RUDs to the petitioners. 16. The respondents state that thereafter, on 12.10.2010, notices were issued to some other noticees (M/s Gomati International and M/s Mahindra Traders) to appear before the Commissioner (Adjudication). However, it was conceded that no notices were issued to the petitioners. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, DRI regarding non furnishing of RUDs to the petitioners. The petitioners claim that by an order dated 26.09.2013, the Commissioner (Adjudication) directed that the documents be collected within a week from the ADG, DRI and pursuant to the said order, some documents were provided to the petitioners, however, the complete record as sought for was still not provided to the petitioners. 22. On 26.11.2013, the ADG, DRI issued a letter to the petitioners informing the petitioners that records were required to be segregated and the petitioners could come to the office and segregate the same. The letter dated 26.11.2013 is not disputed. It is thus clear that the records for the case were not properly segregated at that stage. It is obvious that the concerned officers had not taken any steps to do so and therefore, called upon the petitioners to come to the office and segregate the records. 23. It is the petitioners case that its representatives reached the office of the ADG, DRI on 02.12.2013 and found that documents of various companies were mixed up and were required to be segregated. It is contended on behalf of the petitioners that the records were in such a state that it was not po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter, for a period of one year, that is, till 04.05.2016, the respondents did not take up the proceedings. On 04.05.2016, the case of the petitioners was delegated to the ADJ, DRI for adjudication by the Board. However, no proceedings took place thereafter as well. 27. It is clear from the above that during the prolonged period of 03.04.2009 to 21.07.2016, no effective steps were taken for adjudication of the impugned show cause notice. It is not disputed that during this period there was no impediment for the concerned officers to proceed with the adjudication. The fact that various communications were sent by the Adjudicating Authority to the concerned officers of the DRI for supply of the RUDs is clearly no ground to justify that it was not possible to adjudicate the impugned show cause notice during the said period. In view of the above, we are unable to accept that it was not feasible or possible for the Adjudicating Authority to adjudicate the impugned show cause notice till 06.02.2017. Period from 06.02.2017 to 06.03.2023 28. The respondents state that by the Instruction dated 29.06.2016, the Board directed the transfer of the DRI cases where the show cause notices had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the impugned show cause notice was retrieved from the Call Book on 06.02.2017 in view of the instructions dated 06.01.2017. However, the Board opined that it was not feasible to adjudicate the notices issued prior to 08.07.2011 and therefore the said impugned show cause notice was not adjudicated. It is stated that it was re-entered in the Call Book and was retrieved from the Call Book on 23.01.2023. 33. Admittedly, the petitioners were not informed that the impugned show cause notice was put in the Call Book. 34. In the given facts, we are inclined to accept the petitioners contention that the present petitions are covered by the ratio of the decision of this Court in Nanu Ram Goyal v. Commissioner of CGST and Central Excise, Delhi Ors. Neutral Citation: 2023:DHC:2596-DB and that deferring the adjudication of the impugned show cause notice on account of the Call Book procedure was not justified. However, without going into the question as to the validity of the action of the respondents in placing the impugned show cause notice in a Call Book, it is also apparent that the impugned show cause notice was not adjudicated for a period of over eight years (30.04.2009 to 21.07. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
