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TMI Blog2025 (1) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... lligence, Delhi Zonal Unit (hereinafter "DRI") and to declare the proceedings initiated under the SCN by Respondent No. 2 - Principal Commissioner of Customs, ICD Tughlakabad, New Delhi, to be barred by limitation under Section 28 (9) of the Customs Act, 1962 (hereinafter, "Act"). 3. The case of the Petitioners is that they were engaged in the trading of indigenous and imported Galvanised Iron wires (hereinafter "GI wires") through their firm M/s. Ikon Wire (India). According to the Petitioners, the imported GI wires were being procured from one Shri Sandeep Aggarwal who used to import the same through various firms, either owned or operated, being M/s. Shivalik Impex, M/s. Raghav Impex, M/s. Popular Mart and M/s. White Leaf. The DRI suspected undervaluation in the import of GI wires and "Wire Mesh" that was being imported by these four firms. Accordingly, on 25th February, 2008, the DRI conducted certain searches at the premises of the supplier i.e., Mr. Sandeep Aggarwal and his firms, as also the godown of the Petitioners who had purchased the said products from him. It is the case of the Petitioners that they were forced to deposit a sum of Rs. 75,00,000/- in the name of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious acts of omission & commission, as discussed hereinabove, which have rendered the imported goods liable for confiscation under Section 111 (d) & (m) of the Customs Act, 1962. He has also concerned himself with removing, keeping, depositing, selling and dealing with the imported goods for which he knew and had reasons to believe that they are liable for confiscation. Accordingly, Shri Mohan Lal Jain is liable for penalty under Section 112 (a) & (b) and Section 114AA of the Customs Act, 1962." 5. The Petitioners were made answerable to different jurisdictional Assessing Officers i.e., (i) Commissioner of Customs, JNPT, Nhava sheva, Raigad, (ii) Commissioner of Customs, Kandla, Gujarat, (iii) Commissioner of Customs, ICD, Tughlakabad, New Delhi, (iv) Commissioner of Customs, Rajaji Salai, Chennai. On the basis of the allegations stated in the impugned SCN, the DRI raised various demands including penalty against the persons and firms, including against the Petitioners, alleged to be involved in undervaluation in the import of GI Wires and Wire Mesh. 6. The impugned SCN, however, was not adjudicated for a substantial period of time by the concerned assessing authorities, despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. Section 28 (9) of the Act reads as under: Section 28 (9) of the Customs Act, as in force prior to 29th March 2018 read as under: "28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxx xxxx xxxx xxxx (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 case 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):" Section 28 (9) and 9(A) of the Customs Act, 1962 pursuant to amendment reads as under: "28. Recovery of [duties not levied or not paid or short-levied or short-paid] or erroneously refunded. xxx xxx xxxx (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, [xxx], in respect of case falling under clause (a) of sub-section (1); (b) within one year from the date of notice, [xxx] in respect of cases falling under sub-section (4): [PROVIDED that where the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issuance of show cause notice does not exist. 11. Ld. Counsel for the Petitioner has also relied upon the following judgments: i. State of Punjab & Ors. v. Shreyans Industries Ltd., (2016) SCC769 ii. Shri Ram Agro Chemicals Pvt. Ltd. v. Union of India & Ors., 2019 SCC OnLine P&H 4918 Analysis and Findings 12. The Court has considered the matter. The issue raised in the petition is no longer res-integra. Section 28 (9) of the Act, unamended and amended, have been considered in detail by the Coordinate Benches of this Court in Swatch Group India Pvt. Ltd. (supra) as also M/s Vos Technologies India Pvt. Ltd. v. The Principle Additional Director General & Anr., 2024 SCC OnLine Del 8756. All the issues which have been raised by the Respondents now stand adjudicated. The relevant observations in the said judgments are set out below: Swatch Group India Pvt. Ltd. v. Union of India & Ors. 2023 SCC OnLine Del 4938 "43. We have perused the documents and letters produced by the Department as referred above. It is seen that for a period of almost three years, various letters were exchanged. The matter was fixed for personal hearing on more than five occasions. No reason has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to complete the adjudication within the time period as mandated, cannot be condoned to the detriment of the assessee. Such indifference is not only detrimental to the interest of the taxpayer but also to the exchequer. 47. In the absence of any ground that it was not possible for the officer to determine the amount of duty within the prescribed period, the impugned SCN has lapsed and cannot be adjudicated." M/s Vos Technologies India Pvt. Ltd. v. The Principal Additional Director General & Anr., 2024 SCC OnLine Del 8756 "85. The position which thus emerges from the aforesaid discussion and a review of the legal precedents is that the respondents are bound and obliged in law to endeavour to conclude adjudication with due expedition. Matters which have the potential of casting financial liabilities or penal consequences cannot be kept pending for years and decades together. A statute enabling an authority to conclude proceedings within a stipulated period of time "where it is possible to do so" cannot be countenanced as a license to keep matters unresolved for years. The flexibility which the statute confers is not liable to be construed as sanctioning lethargy or indolence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to call book w.e.f. 29.06.2016 in light of the Board's Instruction issued vide F No. 276/104/2016-CX.8A(Pt.) dated 29.06.2016 (A copy of Board's Instruction issued vide F No. 276/104/2016-CX.8A(Pt.) dated 29.06.2016 is Annexed here as Annexure R/5). The SCN was later taken out from the call book in light of the Board's Instruction issued vide F No. 276/104/2016-CX.8A(Pt.) dated 03.01.2017. (A copy of Board's Instruction issued vide F No. 276/104/2016-CX.8A (Pt.) dated 03.01.2017 is annexed here as Annexure R/6.). Which has issued pursuant to staying of Operation of Hon'ble High Court Judgement dated 03.05.2016 in the SLP 20453/2016 filed by the Department. 12. That further, impugned SCN was transferred again to call book w.e.f., 03.11.2017 in light of the Board's Instruction issued vide F No. 437/ 143/2009-Cus.IV dated 03.11.2017 (A copy of Board's Instruction issued vide F No. 437/ 143/2009-Cus.IV dated 03.11.2017 is annexed here as Annexure R/7) and again taken out from the call book on 03.05.2019 in light of the office Memorandum issued vide F No. 437/ 143/2009-Cus.IV dated 03.05.2019 (A copy of office Memorandum issued vide F No. 437/143/2009- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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