Delhi High Court
Chander Mohan And Co. vs Principal Commissioner Of Customs & … on 10 December, 2024
Author: Yashwant Varma
Bench: Yashwant Varma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 13 August 2024
Judgment pronounced on: 10 December 2024
+ W.P.(C) 4831/2021
M/S VOS TECHNOLOGIES INDIA PVT. LTD. .....Petitioner
Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.
versus
THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL &
ANR. .....Respondents
Through: Mr. Harpreet Singh, Sr. St.
Counsel with Ms. Suhani and
Mr. Jatin Kumar Gaur, Adv.
+ W.P.(C) 4832/2021
M/S AMYRA TECHNICA PVT.LTD. .....Petitioner
Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.
versus
THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL &
ANR. .... Respondents.
Through: Mr. Harpreet Singh, Sr. St.
Counsel with Ms. Suhani and
Mr. Jatin Kumar Gaur, Adv.
+ W.P.(C) 15202/2023 & CM APPL. 60768/2023 (Stay)
M/S R ANIL KUMAR & ANR. .....Petitioner
Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Shikha Sapra, Mr. Piyush
Kumar, Ms. Reena Rawat, Mr.
Nikhil Beniwal, Mr. Navish
Bhati, Mr. Mahabir Singh, Mr.
Archit Jindal and Mr. Akash
Gupta, Advs.
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 1 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
versus
ADDITIONAL DIRECTOR GENERAL, DIRECTORATE OF
REVENUE INTELLIGENCE & ANR. ....Respondents
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-1.
Mr. Aditya Singla, SSC with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates.
+ W.P.(C) 6193/2021
LAXMI SALES CORPORATION .....Petitioner
Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.
versus
THE PRINCIPAL ADDITIONAL
DIRECTOR GENERAL .....Respondent
Through: Mr. Harpreet Singh, Sr. St.
Counsel with Ms. Suhani and
Mr. Jatin Kumar Gaur, Adv.
+ W.P.(C) 3147/2023
M/S MOHIT INTERNATIONAL THROUGH, PROP. HARSH
ANIL KUMAR VASA .....Petitioner
Through: Mr. V.V.Gautam, Ms. Nitu
Barik, Ms. Priya Bhatia, Advs.
versus
COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX
(EXPORTS) & ORS. ....Respondents
Through: Mr. Harpreet Singh, SSC
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 2 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
Adv.
+ W.P.(C) 10289/2023 & CM APPL. 22837/2024 (Stay)
SHEEL NARAIN GUPTA .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
COMMISSIONER OF CUSTOMS ADJUDICATION AND
ORS ....Respondent
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2.
+ W.P.(C) 12425/2023 & CM APPL. 49000/2023 (Stay)
ASHISH JAIN & ORS. ....Petitioners
Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Shikha Sapra, Mr. Piyush
Kumar, Ms. Reena Rawat, Mr.
Nikhil Beniwal, Mr. Navish
Bhati, Mr. Mahabir Singh, Mr.
Archit Jindal and Mr. Akash
Gupta, Advs.
versus
ADDITIONAL DIRECTOR GENERAL, DIRECTORATE OF
REVENUE INTELLIGENCE & ANR. .....Respondents
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv.
Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-2.
+ W.P.(C) 13509/2023 & CM APPL. 64301/2023 (Stay)
ACRY MONOMERS INDIA PVT LTD & ORS. .....Petitioners
Through: Mr. Prem Ranjan Kumar, and
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 3 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
Ms. Poojan Malhotra,
Advocates.
versus
ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF
REVENUE INTELLIGENCE & ANR. .....Respondents
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv.
Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-2.
+ W.P.(C) 15971/2023 & CM APPL. 64259/2023 (Stay)
NAVSHAKTI INDUSTRIES PVT LTD
AND ANR ...Petitioners
Through: Mr. T.P.S.Kang, Md. Zunaid and
Mr. Mohek Gupta, Advs.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Ms. Gigi George and Mr.
Dheeraj Singh, Adv. for R-1.
Ms. Bakshi Vinita, SPC.
Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-2.
+ W.P.(C) 16126/2023 & CM APPL. 64821/2023 (Stay)
M/S SUNNY SALES .....Petitioner
Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Shikha Sapra, Mr. Piyush
Kumar, Ms. Reena Rawat, Mr.
Nikhil Beniwal, Mr. Navish
Bhati, Mr. Mahabir Singh, Mr.
Archit Jindal and Mr. Akash
Gupta, Advs.
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 4 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
versus
COMMISIONER OF CUSTOMS (ADJUDICATION) DELHI &
ANR. .....Respondents
Through: Mr. Aditya Singla, SSC with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates
+ W.P.(C) 16163/2023 & CM APPL. 65012/2023 (Stay)
CITY PAPER .....Petitioner
Through: Mr. T.P.S.Kang, Md. Zunaid and
Mr. Mohek Gupta, Advs.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Ms. Gigi George and Mr.
Dheeraj Singh, Adv. for R-1
Mr. Gibran Naushad, SSC.
Mr Ranvir Singh, CGSPC with
Mr. A.K.Singh, Adv.
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-4.
+ W.P.(C) 6146/2024 & CM APPL. 25563/2024 (Stay)
SUPERTECH ENGINEERS .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
COMMISSIONER OF CENTRAL TAX DELHI WEST AND
ANR .....Respondents
Through: Mr. Gibran Naushad, SSC.
Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for Resp.
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 5 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
+ W.P.(C) 16193/2023 & CM APPL. 65092/2023 (Stay)
NAVSHAKTI INDUSTRIES PVT LTD
AND ANR .....Petitioners
Through: Mr. T.P.S.Kang, Md. Zunaid
and Mr. Mohek Gupta, Advs.
versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. J.K.Tripathi, SPC for R-1
and Ms. Bakshi Vinita, SPC
Mr. Gibran Naushad, SSC.
+ W.P.(C) 3705/2024
ECHO INTERNATIONAL AND ORS ....Petitioners
Through: Dr. Prabhat Kumar and
Mr. Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Ms. Anushree Narain, Standing
Counsel with Ms. Nishtha
Mittal, Adv. for R-1
Mr. Anurag Ojha, SSC with
Mr. Subham Kumar, Mr.Vipul
Kumar and Mr. Abhishek, Adv.
for R.
+ W.P.(C) 3737/2024
DOLPHIN PRINTERS AND ANR .....Petitioners
Through: Dr. Prabhat Kumar and
Mr. Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Ms. Anushree Narain,
Standing Counsel with Ms.
Nishtha Mittal, Adv. for R-1
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 6 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
Mr. Anurag Ojha, SSC with
Mr. Subham Kumar, Mr. Vipul
Kumar and Mr. Abhishek, Adv.
for R-2
+ W.P.(C) 3753/2024
BHAMBRI PRINTING PRESS AND ORS .....Petitioners
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OFCUSTOMS IMPORT AND
ANR .....Respondents
Through: Ms. Anushree Narain, Standing
Counsel with Ms. Nishtha
Mittal, Adv. for R-1
Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for R-2
+ W.P.(C) 3755/2024
RHEA INTERNATIONAL AND ANR .....Petitioners
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 7 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
+ W.P.(C) 3865/2024 & CM APPL. 15953/2024 (Stay) & CM
APPL.46437/2024 (18 Days Delay in C.A.)
HARSH PACKAGING AND ANR .....Petitioners
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT)
AND ANR .....Respondents
Through: Mr. Gibran Naushad, SSC.
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2
+ W.P.(C) 3866/2024
CHAMAN LAL BHAMBRI .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.
+ W.P.(C) 3867/2024
CHAMAN LAL BHAMBRI HARSH
PACKAGING .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 8 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
+ W.P.(C) 3868/2024
CHAMAN LAL BHAMBRI .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.
+ W.P.(C) 3872/2024
CHAMAN LAL BHAMBRI MARUTI
GRAPHICS .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv.
for R-1.
+ W.P.(C) 3875/2024
CHAMAN LAL BHAMBRI (M/S U.S.
ENTERPRISES) .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 9 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
+ W.P.(C) 3877/2024
CHAMAN LAL BHAMBRI MALESHWARI PRINTING
PRESS .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.
+ W.P.(C) 3881/2024 & CM APPL. 15994/2024 (Stay),
46457/2024 (delay of 19 days in filing the counter affidavit)
RAJVANI GRAPHICS TRADE AND ANR .....Petitioners
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Gibran Naushad, SSC.
+ W.P.(C) 3885/2024
CHAMAN LAL BHAMBRI .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 10 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
+ W.P.(C) 3933/2024
CHAMAN LAL BHAMBRI RAJVANI GRAPHICS
TRADE .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT)
AND ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.
+ W.P.(C) 3934/2024
CHAMAN LAL BHAMBRI MAN BHAVAN
ARTS .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.
+ W.P.(C) 3935/2024
CHAMAN LAL BHAMBRI MAGNUM
GRAPHICS .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT)
AND ANR .....Respondents
Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.
Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 11 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for R-2
+ W.P.(C) 5529/2024 & CM APPL. 22745/2024 (Stay)
PRAKASH GARG & ORS. .....Petitioners
Through: Mr. A.K. Prasad, Mr. K.K.
Anand, Ms. Surabhi Sinha, Mr.
Prem Ranjan, Ms. Aakriti Anand
and Ms. Sweety Gangmei, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORTS &
ORS. .....Respondents
Through: Mr. Aakarsh Srivastava,
SC with Mr. Vaibhav Gupta,
Adv. for R-1.
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar,
Mr.Vipul Kumar and Mr.
Abhishek, Adv. for R-2
Mr. T.P.Singh, SGC for R-3.
+ W.P.(C) 5767/2024 & CM APPL. 23891/2024
SHREE GANESH METAL CO. .....Petitioner
Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.
versus
THE ADDITIONAL COMMISSIONER OF CUSTOMS
IMPORT & ANR. .....Respondents
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2
+ W.P.(C) 5896/2024
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 12 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
M/S KASTURI INTERNATIONAL PVT.
LTD. & ORS. .....Petitioners
Through: Mr. Arjun Raghavendra and
Mr. Piyush Deshpande, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT) &
ANR. .....Respondents
Through: Mr. R.Ramchandran, SSC.
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2
+ W.P.(C) 5952/2024 & CM APPL. 24739/2024 (stay)
M/S LAKSHMAN OVERSEAS .....Petitioner
Through: Mr. Deepak Gandhi, Mr. Sumit
Kumar Jha and Mr. Ricky
Chaudhary, Advs.
versus
PRINCIPAL COMMISSIONER OF
CUSTOMS (IMPORT) .....Respondent
Through: Mr. Harpreet Singh, SSC
+ W.P.(C) 6147/2024 & CM APPL. 25568/2024 (stay)
SUPERTECH ENGINEERS .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
COMMISSIONER OF CENTRAL TAX (DELHI WEST) AND
ANR .....Respondents
Through: Mr. Gibran Naushad, SSC.
+ W.P.(C) 6190/2024 & CM APPL. 25739/2024 (Stay)
ECHO INTERNATIONAL .....Petitioner
Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
versus
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 13 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
COMMISSIONER OF CUSTOMS EXPORT
AND ANR .....Respondent
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2
+ W.P.(C) 6253/2024 & CM APPL. 26068/2024 (Stay)
DAILY AJIT PUNJABI PUNJABI NEWSPAPER, SADHU
SINGH HAMDARD TRUST & ANR. .....Petitioners
Through: Mr. Prem Ranjan Kumar and
Ms. Poojan Malhotra,
Advocates.
versus
THE PRINCIPAL COMMISSIONER OF
CUSTOMS & ANR .....Respondents
Through: Mr. R.Ramchandran, Sr. SC.
Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for R-2
+ W.P.(C) 6429/2024 & CM APPL. 26808/2024 (Interim Relief),
CM APPL. 26810/2024 (addl record)
SYONA SPA .....Petitioner
Through: Mr. J.K.Mittal, Ms. Vandana
Mittal and Mr. Mukesh
Chaudhary, Advs.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Aditya Singla, SSC with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates.
+ W.P.(C) 6524/2024
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 14 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
B. E. CONTRACTS (P) LTD .....Petitioner
Through: Mr. Ravi Kant Chandok, Mr.
Umesh Sarwal, Mr. Vasudev
Lalvani, Mr. Tushar Sahni and
Mr.Siddharth Sarwal, Advs.
versus
COMMISSIONER, CENTRAL GOODS AND SERVICES TAX
AUDIT - II, DELHI .....Respondent
Through: Mr. Harpreet Singh, SSC with
Mr. Atul Tripathi, SSC, CBIC
with Mr. V.K.Attri, Mr. Amresh
Jha and Ms. Preeti Kumari,
Advocates.
+ W.P.(C) 6545/2024 & CM APPL. 27291/2024
DELHI INTERNATIONAL AIRPORT LIMITED .....Petitioner
Through: Mr. Sparsh Bhargava, Ms. Ishita
Farsaiya and Ms. Vanshika
Taneja, Advs.
versus
COMMISSIONER OF CGST AND
CENTRAL EXCISE .....Respondent
Through: Mr. Aditya Singla, SSc with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates.
+ W.P.(C) 6548/2024 & CM APPL. 27294/2024 (Interim Relief) ,
GMR AIRPORT INFRASTRUCTURE LIMITED
(EARLIER KNOWN AS GMR INFRASTRUCTURE
LIMITED) .....Petitioner
Through: Mr. Sparsh Bhargava, Ms. Ishita
Farsaiya and Ms. Vanshika
Taneja, Advs.
versus
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 15 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Asheesh Jain, CGSC with
Mr. Gaurav Kumar and Mr.
Yashaswi S.K.Chocksey, Govt.
Pleader. For R-1.
Ms. Sonu Bhatnagar, Sr. St.
Counsel with Ms. Nishtha Mittal,
Ms. Apurva Singh and Mr.
K.S.Mary Jonet, Adv. for R-2.
Mr. Ramchandran, SR. SC.
+ W.P.(C) 6714/2024 & CM APPL. 27966/2024 (Stay), CM
APPL. 46258/2024 (delay of 18 days )
M/S J.R. INTERNATIONAL .....Petitioner
Through: Mr. Abhas Mishra and Ms. Neha
Singhal, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS
AND ANR .....Respondents
Through: Mr. Gibran Naushad, SSC.
Mr. Harpreet Singh, SSC for
R-2.
+ W.P.(C) 7327/2024 & CM APPL. 30571/2024 (Stay)
SHRI SURINDER GARG & ORS. .....Petitioners
Through: Mr. A.K. Prasad, Mr. K.K.
Anand, Ms. Surabhi Sinha, Mr.
Prem Ranjan, Ms. Aakriti Anand
and Ms. Sweety Gangmei, Advs.
versus
PRINCIPAL COMMISSIONER OF CUSTOMS IMPORTS &
ORS. .....Respondents
Through: Mr. Anurag Ojha, SSC with Mr.
Subham Kumar, Mr. Vipul
Kumar and Mr. Abhishek, Adv.
for R-2
Signature Not Verified
W.P.(C) 4831/2021 & connected matters Page 16 of 125
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
Mr. Shankar Kumar Jha, SPC,
UOI.
+ W.P.(C) 7355/2024 & CM APPL. 30706/2024 (Stay)
ELOF HANSSON INDIA PRIVATE LIMITED .....Petitioner
Through: Mr. Tarun Gulati, Sr. Adv. with
Ms. Shruti Kulkarni, Mr. Suresh
Varanasi, Mr. Harpreet Singh
Ajmani, Mr. Sagnik Chatterjee
and Ms. Gunjan Pande, Advs.
versus
PRINCIPAL COMMISSIONER INLAND CONTAINER &
ANR. .....Respondents
Through: Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-1 and 2.
Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Advs.
+ W.P.(C) 8074/2024 & CM APPL. 33277/2024 (Stay), CM
APPL. 46394/2024
THERMO CONTROL AND INSTRUMENTS
& ORS. .....Petitioners
Through: Mr. Pavan Narang, Mr.
Himanshu Sethi, Mr.
K.K.Malhotra, Mr. K.K.Bhalla
and Ms. Aishwarya Chhabra,
Advs.
versus
PRINCIPAL COMMISSIONER OF
CUSTOMS & ORS. .....Respondents
Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R1 to R3.
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+ W.P.(C) 8077/2024 & CM APPL. 33284/2024 (Stay), CM
APPL. 46394/2024
CHANDER MOHAN AND CO. .....Petitioner
Through: Mr. Pavan Narang, Mr.
Himanshu Sethi, Mr.
K.K.Malhotra, Mr. K.K.Bhalla
and Ms. Aishwarya Chhabra,
Advs.
versus
PRINCIPAL COMMISSIONER OF
CUSTOMS & ORS. .....Respondents
Through: Mr. Gibran Naushad, SSC.
+ W.P.(C) 8355/2024 & CM APPL. 34337/2024 (Stay)
ASCENT CONSTRUCTIONS PVT LTD .....Petitioner
Through: Mr. Ravi Kant Chandok, Mr.
Umesh Sarwal, Mr. Vasudev
Lalvani, Mr. Tushar Sahni and
Mr. Siddharth Sarwal, Advs.
versus
COMMISSIONER, CENTRAL GOODS AND SERVICES TAX
DELHI (EAST) .....Respondent
Through: Mr. Akshay Amritanshu, Sr. St.
Counsel with Mr. Samyak Jain,
Ms. Pragya Upadhyay and Ms.
Drishti Saraf, Advs.
+ W.P.(C) 10020/2023 & CM APPL. 38629/2023 (Stay)
ABDUL KHALIQUE .....Petitioner
Through: Mr. Ravi Kant Chandok, Mr.
Umesh Sarwal, Mr. Vasudev
Lalvani, Mr. Tushar Sahni and
Mr. Siddharth Sarwal, Advs.
versus
COMMISSIONER, CENTRAL GOODS & SERVICES TAX,
DELHI (NORTH) .....Respondent
Through: Mr. Atul Tripathi, SSC with Mr.
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Digitally Signed
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Signing Date:10.12.2024
17:18:44
V.K.Attri, Mr. Amresh Jha and
Ms. Preeti Kumari, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
YASHWANT VARMA, J.
TABLE OF CONTENTS
I. Preface ……………………………………………………………………………………….. 19
II. The Statutory Framework …………………………………………………………… 22
III. The “Proper Officer” Conundrum ………………………………………………. 39
IV. Factual Narrative ……………………………………………………………………….. 53
V. Submissions of Parties ………………………………………………………………… 58
VI. The ‘State of Flux’ Question ……………………………………………………….. 94
VII. Delay in Adjudication: Its Impact …………………………………………….. 106
VIII. Call Book and the Section 28 Requirements …………………………….. 111
IX. Summation ……………………………………………………………………………….. 123
X. Operative Directions …………………………………………………………………. 125
I. PREFACE
1. This batch of writ petitions seek the quashing of the Show Cause
Notices 1 and pending adjudication proceedings arising out of the
1
SCNs
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Customs Act, 1962 2, the Finance Act, 1994 3 and the Central Goods
and Services Tax, 2017 4. Additionally, in some of the writ petitions
forming part of this batch, orders-in-original passed by the respondents
on conclusion of the SCN proceedings are also assailed.
2. The principal ground of attack is the inordinate delay in the
finalisation of the adjudication proceedings with the writ petitioners
contending that the failure on the part of the respondents to conclude
adjudication within a reasonable period of time and inordinately
delaying the same for decades together would constitute a sufficient
ground to annul those proceedings. They would contend that the
principles of a ‘reasonable period’ which courts have propounded in
connection with an adjudicatory function conferred upon an authority
would apply and the impugned SCNs’ and orders are liable to be
quashed on this short score alone.
3. Insofar as the writ petitions pertaining to the Customs Act are
concerned, the petitioners also seek to draw sustenance from certain
statutory amendments that came to be introduced by virtue of Finance
Act, 2018 5 and in terms of which the phrase “where it is possible to do
so”, as previously occurring in Section 28 (9) came to be omitted. The
2018 Act also saw the insertion of a Second Proviso to Section 28(9)
and which provided that in case of a failure to conclude adjudication
proceedings even within the extended period, would trigger a legal
fiction of it being presumed that the SCN had never been issued. The
other significant amendment which came to be made to Section 28 was
2
Customs Act
3
1994 Act
4
CGST Act
5
2018 Act
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the introduction of sub-section (9A). However, we propose to review
the impact of this amendment in subsequent parts of this decision.
4. The aforesaid amendments, the petitioners argue, are a
manifestation of the legislative intent of the timeframes as prescribed
being strictly adhered to. Without prejudice to the above, it was
submitted that even if the SCNs’ were to be tested on the basis of the
existence of the phrase “where it is possible to do so” and the precept of
reasonable time as evolved by courts, it would be apparent that the
delay in the present cases, and which in some cases has stretched to
decades, is not liable to be ignored and the impugned proceedings liable
to be quashed.
5. The respondents, on the other hand, had principally asserted that
delay cannot and by itself constitute a sufficient ground to interdict a
pending adjudication. They had urged us to bear in consideration that
the principle of adjudication being concluded within a reasonable
period is a question which must necessarily be answered in the
backdrop of individual facts which obtain. The submission essentially
was that mere delay cannot constitute a basis which can be universally
applied de hors the facts of a particular case.
6. The respondents had also sought to explain the delay in the
context of the placement of matters in the call book, a flux in the legal
position considering the decisions rendered by the Supreme Court in
Commr. of Customs vs. Sayed Ali 6 and Canon India (P) Ltd. vs.
Commr. of Customs 7. Those decisions, it becomes pertinent to note,
had dealt with the issue of whether an officer of the Directorate of
6
(2011) 3 SCC 537
7
(2021) 18 SCC 563; Canon I
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Revenue Intelligence 8 could be deemed to be a “proper officer”, an
expression which appears repeatedly in the Customs Act, and could
exercise or commence a process of enquiry or adjudication. According
to the respondents, the doubt which came to be cast by these judgments
on action initiated by officers of the DRI also came to be noticed by
this Court in Mangali Impex Ltd. vs. UOI 9.
7. Mangali Impex was concerned with the Customs (Amendment
and Validation) Act, 2011 10 and pursuant to which Section 28(11) had
come to be introduced in the Customs Act. While we shall have an
occasion to deal with the aforenoted judgments as well as the statutory
amendments which came to be introduced in the latter part of this
decision, suffice it to note that according to the respondents, the delay
in adjudication was neither deliberate nor designed. According to them,
it was the aforementioned intervening factors that led to the SCN
proceedings not being concluded with desired expedition.
II. THE STATUTORY FRAMEWORK
8. Having broadly noticed the principal submissions which were
addressed by respective sides, this would constitute an appropriate
juncture to notice the salient provisions of the three principal statutes
with which the impugned adjudication proceedings are concerned.
9. Insofar as the Customs Act is concerned, while undisputedly the
exporter or the importer, as the case may be, stands enabled to follow
the route of self-assessment and declaration, those once endorsed are
undoubtedly liable to be viewed as having been duly assessed in
8
DRI
9
2016 SCC OnLine Del 2597
10
Amendment and Validation Act
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accordance with the provisions of that statute. Section 28 of the
Customs Act is concerned with duties and interest that may have been
either not levied, paid, short-levied, short-paid, or erroneously
refunded. It also extends to instances where levy of duty would have
escaped or a refund erroneously granted by reason of collusion, wilful
misstatement or suppression of facts by the importer or the exporter.
The provision as it exists today is reproduced hereinbelow:
“[28. Recovery of [duties not levied or not paid or short-levied or
short-paid] or erroneously refunded.–(1) Where any [duty has
not been levied or not paid or has been short-levied or short-paid] or
erroneously refunded, or any interest payable has not been paid, part-
paid or erroneously refunded, for any reason other than the reasons
of collusion or any wilful mis-statement or suppression of facts,–
(a) the proper officer shall, within [two years] from the
relevant date, serve notice on the person chargeable with the
duty or interest which has not been so levied [or paid] or
which has been short-levied or short-paid or to whom the
refund has erroneously been made, requiring him to show
cause why he should not pay the amount specified in the
notice:
[Provided that before issuing notice, the proper officer
shall hold pre-notice consultation with the person
chargeable with duty or interest in such manner as may be
prescribed;]
(b) the person chargeable with the duty or interest, may pay
before service of notice under clause (a) on the basis of,–
(i) his own ascertainment of such duty; or
(ii) the duty ascertained by the proper officer,
the amount of duty along with the interest payable thereon
under Section 28-AA or the amount of interest which has
not been so paid or part-paid:
[Provided that the proper officer shall not serve such
show cause notice, where the amount involved is less than
Rupees One hundred.]
(2) The person who has paid the duty along with interest or amount
of interest under clause (b) of sub-section (1) shall inform the proper
officer of such payment in writing, who, on receipt of such
information, shall not serve any notice under clause (a) of that sub-
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section in respect of the duty or interest so paid or any penalty
leviable under the provisions of this Act or the rules made thereunder
in respect of such duty or interest.
[Provided that where notice under clause (a) of sub-section
(1) has been served and the proper officer is of the opinion that the
amount of duty along with interest payable thereon under Section
28-AA or the amount of interest, as the case may be, as specified in
the notice, has been paid in full within thirty days from the date of
receipt of the notice, no penalty shall be levied and the proceedings
against such person or other persons to whom the said notice is
served under clause (a) of sub-section (1) shall be deemed to be
concluded.]
(3) Where the proper officer is of the opinion that the amount paid
under clause (b) of sub-section (1) falls short of the amount actually
payable, then, he shall proceed to issue the notice as provided for in
clause (a) of that sub-section in respect of such amount which falls
short of the amount actually payable in the manner specified under
that sub-section and the period of [two years] shall be computed
from the date of receipt of information under sub-section (2).
(4) Where any duty has not been [levied or not paid or has been
short-levied or short-paid] or erroneously refunded, or interest
payable has not been paid, part-paid or erroneously refunded, by
reason of,–
(a) collusion; or
(b) any wilful misstatement; or
(c) suppression of facts,
by the importer or the exporter or the agent or employee of the
importer or exporter, the proper officer shall, within five years from
the relevant date, serve notice on the person chargeable with duty or
interest which has not been [so levied or not paid] or which has been
so short-levied or short-paid or to whom the refund has erroneously
been made, requiring him to show cause why he should not pay the
amount specified in the notice.
(5) Where any [duty has not been levied or not paid or has been
short-levied or short-paid] or the interest has not been charged or has
been part-paid or the duty or interest has been erroneously refunded
by reason of collusion or any wilful misstatement or suppression of
facts by the importer or the exporter or the agent or the employee of
the importer or the exporter, to whom a notice has been served under
sub-section (4) by the proper officer, such person may pay the duty
in full or in part, as may be accepted by him, and the interest payable
thereon under Section 28-AA and the penalty equal to [fifteen per
cent] of the duty specified in the notice or the duty so accepted by
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that person, within thirty days of the receipt of the notice and inform
the proper officer of such payment in writing.
(6) Where the importer or the exporter or the agent or the employee
of the importer or the exporter, as the case may be, has paid duty
with interest and penalty under sub-section (5), the proper officer
shall determine the amount of duty or interest and on determination,
if the proper officer is of the opinion–
(i) that the duty with interest and penalty has been paid in
full, then, the proceedings in respect of such person or other
persons to whom the notice is served under sub-section (1)
or sub-section (4), shall, without prejudice to the provisions
of Sections 135, 135-A and 140 be deemed to be conclusive
as to the matters stated therein; or
(ii) that the duty with interest and penalty that has been paid
falls short of the amount actually payable, then, the proper
officer shall proceed to issue the notice as provided for in
clause (a) of sub-section (1) in respect of such amount
which falls short of the amount actually payable in the
manner specified under that sub-section and the period of
[two years] shall be computed from the date of receipt of
information under sub-section (5).
(7) In computing the period of [two years] referred to in clause (a) of
sub-section (1) or five years referred to in sub-section (4), the period
during which there was any stay by an order of a court or tribunal in
respect of payment of such duty or interest shall be excluded.
[(7-A) Save as otherwise provided in clause (a) of sub-section (1) or
in sub-section (4), the proper officer may issue a supplementary
notice under such circumstances and in such manner as may be
prescribed, and the provisions of this section shall apply to such
supplementary notice as if it was issued under the said sub-section
(1) or sub-section (4).]
(8) The proper officer shall, after allowing the concerned person an
opportunity of being heard and after considering the representation,
if any, made by such person, determine the amount of duty or
interest due from such person not being in excess of the amount
specified in the notice.
(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, [* * *], in
respect of cases falling under clause (a) of sub-section (1);
(b) within one year from the date of notice, [* * *], in
respect of cases falling under sub-section (4):
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[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.]
[(9-A) Notwithstanding anything contained in sub-section (9), where
the proper officer is unable to determine the amount of duty or
interest under sub-section (8) for the reason that–
(a) an appeal in a similar matter of the same person or any
other person is pending before the Appellate Tribunal or the
High Court or the Supreme Court; or
(b) an interim order of stay has been issued by the Appellate
Tribunal or the High Court or the Supreme Court; or
(c) the Board has, in a similar matter, issued specific
direction or order to keep such matter pending; or
(d) the Settlement Commission has admitted an application
made by the person concerned,
the proper officer shall inform the person concerned the reason for
non-determination of the amount of duty or interest under sub-
section (8) and in such case, the time specified in sub-section (9)
shall apply not from the date of notice, but from the date when such
reason ceases to exist.]
(10) Where an order determining the duty is passed by the proper
officer under this section, the person liable to pay the said duty shall
pay the amount so determined along with the interest due on such
amount whether or not the amount of interest is specified separately.
[(10-A) Notwithstanding anything contained in this Act, where an
order for refund under sub-section (2) of Section 27 is modified in
any appeal and the amount of refund so determined is less than the
amount refunded under said sub-section, the excess amount so
refunded shall be recovered along with interest thereon at the rate
fixed by the Central Government under Section 28-AA, from the
date of refund up to the date of recovery, as a sum due to the
Government.
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(10-B) A notice issued under sub-section (4) shall be deemed to have
been issued under sub-section (1), if such notice demanding duty is
held not sustainable in any proceeding under this Act, including at
any stage of appeal, for the reason that the charges of collusion or
any wilful mis-statement or suppression of facts to evade duty has
not been established against the person to whom such notice was
issued and the amount of duty and the interest thereon shall be
computed accordingly.]
[(11) Notwithstanding anything to the contrary contained in any
judgment, decree or order of any court of law, tribunal or other
authority, all persons appointed as Officers of Customs under sub-
section (1) of Section 4 before the 6th day of July, 2011, shall be
deemed to have and always had the power of assessment under
Section 17 and shall be deemed to have been and always had been
the proper officers for the purposes of this section.]
Explanation 1.–For the purposes of this section, “relevant date”
means,–
(a) in a case where duty is [not levied or not paid or short-
levied or short-paid], or interest is not charged, the date on
which the proper officer makes an order for the clearance of
goods;
(b) in a case where duty is provisionally assessed under
Section 18, the date of adjustment of duty after the final
assessment thereof or re-assessment, as the case may be;
(c) in a case where duty or interest has been erroneously
refunded, the date of refund;
(d) in any other case, the date of payment of duty or interest.
Explanation 2.–For the removal of doubts, it is hereby declared that
any non-levy, short-levy or erroneous refund before the date on
which the Finance Bill, 2011 receives the assent of the President,
shall continue to be governed by the provisions of Section 28 as it
stood immediately before the date on which such assent is received.]
[Explanation 3.–For the removal of doubts, it is hereby declared
that the proceedings in respect of any case of non-levy, short-levy,
non-payment, short-payment or erroneous refund where show cause
notice has been issued under sub-section (1) or sub-section (4), as
the case may be, but an order determining duty under sub-section (8)
has not been passed before the date on which the Finance Bill, 2015
receives the assent of the President, shall, without prejudice to the
provisions of Sections 135, 135-A and 140, as may be applicable, be
deemed to be concluded, if the payment of duty, interest and penalty
under the proviso to sub-section (2) or under sub-section (5), as the
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case may be, is made in full within thirty days from the date on
which such assent is received.]
[Explanation 4.–For the removal of doubts, it is hereby declared
that notwithstanding anything to the contrary contained in any
judgment, decree or order of the Appellate Tribunal or any Court or
in any other provision of this Act or the rules or regulations made
thereunder, or in any other law for the time being in force, in cases
where notice has been issued for non-levy, short-levy, non-payment,
short-payment or erroneous refund, prior to the 29th day of March,
2018, being the date of commencement of the Finance Act, 2018 (13
of 2018), such notice shall continue to be governed by the provisions
of Section 28 as it stood immediately before such date.]”
10. Section 28(1) deals with situations where the proper officer
comes to form the opinion that duty or interest leviable has either not
been levied or paid, escaped an accurate assessment as also cases where
a refund may have come to be incorrectly granted. In such an
eventuality, the provision places the proper officer under the obligation
to issue notice to the exporter or the importer to show cause why the
duty or interest leviable should not be recovered. The adjudicatory
process which comes to be initiated culminates in a determination of
the duty leviable and recovered in accordance with the Section 28(3)
and in terms of which the proper officer would compute the amount of
duty or interest, which according to it, had either escaped being levied
or had been short-levied or short-paid.
11. Section 28, by virtue of sub-section (4), thereafter proceeds to
construct and lay in place a similar procedure where the allegation of
duty having escaped levy or having been short-levied, short-paid or
erroneously refunded, occurred by virtue of collusion, wilful
misstatement or suppression of facts. Hereto, the proper officer, upon
formation of an opinion that sub-section (4) would be attracted, is
obliged to issue a notice calling upon the importer or exporter to pay
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the amounts that may be specified therein. Where proceedings are
referable to Section 28(4), and in cases where the allegation of
collusion, wilful misstatement or suppression of facts be contested, the
proper office would proceed to undertake a determination of the duty or
interest payable in terms contemplated under Section 28(6).
12. While the action referable to Section 28(1) can be initiated within
two years from the relevant date, the statute prescribes a timeframe of
five years in respect of cases which would fall within the ambit of sub-
section (4) thereof. The statute proceeds further to set out the
timeframes within which the adjudicatory proceedings are liable to be
concluded dependent on whether they be referable to sub-section (1) or
sub-section (4) of Section 28. Explanation 1 to Section 28 defines the
expression “relevant date” and which constitutes the starting point for
the purposes of computation of the two and five year period for
initiation of action under sub-sections (1) and (4) respectively.
13. In the case of the former, Section 28(9) postulates that the
amount of duty or interest which is alleged to have escaped assessment
would have to be determined within a period of six months from the
date of notice while in the case of an import or an export which is
sought to be reopened under sub-section (4), the proceedings would
have to be completed within one year from the date of notice.
14. It is pertinent to note that both clauses (a) and (b) of Section
28(9) had, prior to 2018, employed the expression “where it is possible
to do so”. This ultimately came to be omitted by the 2018 Act.
However, in terms of that very amending statute, the Customs Act also
saw the insertion of a sub-section (9-A) in Section 28 and which sought
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to deal with contingencies where a proper officer may be unable to
determine the amount of duty or interest. In terms of that provision, in
situations that are spoken of in clauses (a) to (d) of sub-section (9-A),
the proper officer stands relieved from complying with the time frames
erected by virtue of Section 28(9). The contingencies which are spoken
of in Section 28(9-A) range from the pendency of an appeal in a similar
matter before an Appellate Tribunal, the High Court or the Supreme
Court, an order of stay that may operate, the Central Board of
Indirect Taxes and Customs 11 which was earlier known as the
Central Board of Excise and Customs 12 having issued a direction or
order to keep proceedings of adjudication in abeyance as well as where
the Settlement Commission may have admitted an application made by
an exporter or the importer.
15. Reverting then to the principal provision we take note of
Explanation 2 and which provides that all cases of non-levy, short-levy
or erroneous refund, pertaining to a period prior to the date when
Finance Bill, 2011 received the assent of the President, would be
governed by Section 28 as it stood before the date on which such assent
was received. Of equal significance is Explanation 4, and which prior to
the shape in which it exists presently in the statute and prior to the
introduction of amendments by virtue of the Finance Act, 2020 13, had
read as follows:
“Explanation 4.–For the removal of doubts, it is hereby declared
that in cases where notice has been issued for non-levy, not paid,
short-levy or short-paid or erroneous refund after the 14th day of
May, 2015, but before the date on which the Finance Bill, 201811
Board/CBIC
12
Board/CBEC
13
2020 Act
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receives the assent of the President, they shall continue to be
governed by the provisions of Section 28 as it stood immediately
before the date on which such assent is received.”
16. Explanation 4 as it exists now, and which came to be recast with
retrospective effect from 29 March 2018 as per the provisions of the
2020 Act, provides that notwithstanding any judgment, decree or order,
any notice pertaining to non-levy, short-levy or erroneous refunds,
issued prior to 29 March 2018 (the date of commencement of 2018 Act)
would be governed by the provisions of Section 28, as they stood
immediately before that date.
17. We then proceed further to notice similar provisions which stand
incorporated in the 1994 Act. Section 73 of the 1994 Act incorporates
the following provision with respect to non-levy, short-levy or
erroneous refund of tax:
“[73. Recovery of service tax not levied or paid or short-levied or
short-paid or erroneously refunded.–(1) Where any service tax
has not been levied or paid or has been short-levied or short-paid or
erroneously refunded, the [Central Excise Officer] may,
within [thirty months] from the relevant date, serve notice on the
person chargeable with the service tax which has not been levied or
paid or which has been short-levied or short-paid or the person to
whom such tax refund has erroneously been made, requiring him to
show cause why he should not pay the amount specified in the
notice:
Provided that where any service tax has not been levied or
paid or has been short-levied or short-paid or erroneously refunded
by reason of–
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this chapter or
of the rules made thereunder with intent to evade payment
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by the person chargeable with the service tax or his agent, the
provisions of this sub-section shall have effect, as if, for the words
“[thirty months]”, the words “five years” had been substituted.
Explanation.–Where the service of the notice is stayed by an order
of a court, the period of such stay shall be excluded in computing the
aforesaid period of [thirty months] or five years, as the case may be.
[(1-A) Notwithstanding anything contained in sub-section (1)
(except the period of [thirty months] of serving the notice for
recovery of service tax), the Central Excise Officer may serve,
subsequent to any notice or notices served under that sub-section, a
statement, containing the details of service tax not levied or paid or
short levied or short paid or erroneously refunded for the subsequent
period, on the person chargeable to service tax, then, service of such
statement shall be deemed to be service of notice on such person,
subject to the condition that the grounds relied upon for the
subsequent period are same as are mentioned in the earlier notices.]
[(1-B) Notwithstanding anything contained in sub-section (1), in a
case where the amount of service tax payable has been self-assessed
in the return furnished under sub-section (1) of Section 70, but not
paid either in full or in part, the same shall be recovered along with
interest thereon in any of the modes specified in Section 87, without
service of notice under sub-section (1).]
(2) The [Central Excise Officer] shall, after considering the
representation, if any, made by the person on whom notice is served
under sub-section (1), determine the amount of service tax due from,
or erroneously refunded to, such person (not being in excess of the
amount specified in the notice) and thereupon such person shall pay
the amount so determined:
[* * *].]
[(2-A) Where any appellate authority or tribunal or court concludes
that the notice issued under the proviso to sub-section (1) is not
sustainable for the reason that the charge of,–
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or
the rules made thereunder with intent to evade payment of
service tax,
has not been established against the person chargeable with the
service tax, to whom the notice was issued, the Central Excise
Officer shall determine the service tax payable by such person for
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offences for which limitation of [thirty months] applies under sub-
section (1).]
(3) Where any service tax has not been levied or paid or has been
short-levied or short-paid or erroneously refunded, the person
chargeable with the service tax, or the person to whom such tax
refund has erroneously been made, may pay the amount of such
service tax, chargeable or erroneously refunded, on the basis of his
own ascertainment thereof, or on the basis of tax ascertained by a
Central Excise Officer before service of notice on him under sub-
section (1) in respect of such service tax, and inform the [Central
Excise Officer] of such payment in writing, who, on receipt of such
information shall not serve any notice under sub-section (1) in
respect of the amount so paid:
Provided that the [Central Excise Officer] may determine
the amount of short-payment of service tax or erroneously refunded
service tax, if any, which in his opinion has not been paid by such
person and, then, the [Central Excise Officer] shall proceed to
recover such amount in the manner specified in this section, and the
period of “[thirty months]” referred to in sub-section (1) shall be
counted from the date of receipt of such information of payment.
[Explanation-1].–For the removal of doubts, it is hereby declared
that the interest under Section 75 shall be payable on the amount
paid by the person under this sub-section and also on the amount of
short payment of service tax or erroneously refunded service tax, if
any, as may be determined by the [Central Excise Officer], but for
this sub-section.
[Explanation-2.–For the removal of doubts, it is hereby declared
that no penalty under any of the provisions of this Act or the rules
made thereunder shall be imposed in respect of payment of service
tax under this sub-section and interest thereon.]
(4) Nothing contained in sub-section (3) shall apply to a case where
any service tax has not been levied or paid or has been short-levied
or short-paid or erroneously refunded by reason of–
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this chapter or
of the rules made thereunder with intent to evade payment
of service tax.
(4-A) [* * *]
[(4-B) The Central Excise Officer shall determine the amount of
service tax due under sub-section (2)–
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(a) within six months from the date of notice where it is
possible to do so, in respect of cases [falling under] 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 the
proviso to sub-section (1) or the proviso to sub-section (4-
A).]
(5) The provisions of sub-section (3) shall not apply to any case
where the service tax had become payable or ought to have been
paid before the 14th day of May, 2003.
(6) For the purposes of this section, “relevant date” means,–
(i) in the case of taxable service in respect of which service
tax has not been levied or paid or has been short-levied or
short-paid–
(a) where under the rules made under this chapter, a
periodical return, showing particulars of service tax paid
during the period to which the said return relates, is to be
filed by an assessee, the date on which such return is so
filed;
(b) where no periodical return as aforesaid is filed, the
last date on which such return is to be filed under the
said rules;
(c) in any other case, the date on which the service tax is
to be paid under this chapter or the rules made
thereunder;
(ii) in a case where the service tax is provisionally assessed
under this chapter or the rules made thereunder, the date of
adjustment of the service tax after the final assessment
thereof;
(iii) in a case where any sum, relating to service tax, has
erroneously been refunded, the date of such refund.]”
18. This provision flows along lines similar to those appearing in the
Customs Act and creates two separate streams dependent on whether
the allegation be plainly of short-levy, non-levy or erroneous refund as
contrasted with cases where that may have occurred by reason of fraud,
collusion, wilful misstatement or suppression of facts. However, and of
significance is sub-section (4-B), and which continues to employ the
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phrase “where it is possible to do so” as opposed to the amendments
which came to be made in Section 28 of the Customs Act.
19. The CGST Act also adopts similar provisions for purposes of
determination of tax not paid, short-paid or erroneously refunded in the
shape of Sections 73 and 74. Both those provisions, which came to be
enforced from 01 July 2017 are reproduced hereinbelow:-
“73. Determination of tax [pertaining to the period up to
Financial Year 2023-24,] not paid or short paid or erroneously
refunded or input tax credit wrongly availed or utilised for any
reason other than fraud or any wilful-misstatement or
suppression of facts.–(1) Where it appears to the proper officer
that any tax has not been paid or short paid or erroneously refunded,
or where input tax credit has been wrongly availed or utilised for any
reason, other than the reason of fraud or any wilful-misstatement or
suppression of facts to evade tax, he shall serve notice on the person
chargeable with tax which has not been so paid or which has been so
short paid or to whom the refund has erroneously been made, or who
has wrongly availed or utilised input tax credit, requiring him to
show cause as to why he should not pay the amount specified in the
notice along with interest payable thereon under Section 50 and a
penalty leviable under the provisions of this Act or the rules made
thereunder.
(2) The proper officer shall issue the notice under sub-section (1) at
least three months prior to the time limit specified in sub-section (10)
for issuance of order.
(3) Where a notice has been issued for any period under sub-section
(1), the proper officer may serve a statement, containing the details
of tax not paid or short paid or erroneously refunded or input tax
credit wrongly availed or utilised for such periods other than those
covered under sub-section (1), on the person chargeable with tax.
(4) The service of such statement shall be deemed to be service of
notice on such person under sub-section (1), subject to the condition
that the grounds relied upon for such tax periods other than those
covered under sub-section (1) are the same as are mentioned in the
earlier notice.
(5) The person chargeable with tax may, before service of notice
under sub-section (1) or, as the case may be, the statement under
sub-section (3), pay the amount of tax along with interest payable
thereon under Section 50 on the basis of his own ascertainment ofSignature Not Verified
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such tax or the tax as ascertained by the proper officer and inform
the proper officer in writing of such payment.
(6) The proper officer, on receipt of such information, shall not serve
any notice under sub-section (1) or, as the case may be, the statement
under sub-section (3), in respect of the tax so paid or any penalty
payable under the provisions of this Act or the rules made
thereunder.
(7) Where the proper officer is of the opinion that the amount paid
under sub-section (5) falls short of the amount actually payable, he
shall proceed to issue the notice as provided for in sub-section (1) in
respect of such amount which falls short of the amount actually
payable.
(8) Where any person chargeable with tax under sub-section (1) or
sub-section (3) pays the said tax along with interest payable under
Section 50 within thirty days of issue of show cause notice, no
penalty shall be payable and all proceedings in respect of the said
notice shall be deemed to be concluded.
(9) The proper officer shall, after considering the representation, if
any, made by person chargeable with tax, determine the amount of
tax, interest and a penalty equivalent to ten per cent. of tax or ten
thousand rupees, whichever is higher, due from such person and
issue an order.
(10) The proper officer shall issue the order under sub-section (9)
within three years from the due date for furnishing of annual return
for the financial year to which the tax not paid or short paid or input
tax credit wrongly availed or utilised relates to or within three years
from the date of erroneous refund.
(11) Notwithstanding anything contained in sub-section (6) or sub-
section (8), penalty under sub-section (9) shall be payable where any
amount of self-assessed tax or any amount collected as tax has not
been paid within a period of thirty days from the due date of
payment of such tax.
[(12) The provisions of this section shall be applicable for
determination of tax pertaining to the period up to Financial Year
2023-24.]
xxxx xxxx xxxx
74. Determination of tax [,pertaining to the period up to
Financial Year 2023-24,] not paid or short paid or erroneously
refunded or input tax credit wrongly availed or utilised by
reason of fraud or any wilful-misstatement or suppression of
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facts.–(1) Where it appears to the proper officer that any tax has not
been paid or short paid or erroneously refunded or where input tax
credit has been wrongly availed or utilised by reason of fraud, or any
wilful-misstatement or suppression of facts to evade tax, he shall
serve notice on the person chargeable with tax which has not been so
paid or which has been so short paid or to whom the refund has
erroneously been made, or who has wrongly availed or utilised input
tax credit, requiring him to show cause as to why he should not pay
the amount specified in the notice along with interest payable
thereon under Section 50 and a penalty equivalent to the tax
specified in the notice.
(2) The proper officer shall issue the notice under sub-section (1) at
least six months prior to the time limit specified in sub-section (10)
for issuance of order.
(3) Where a notice has been issued for any period under sub-section
(1), the proper officer may serve a statement, containing the details
of tax not paid or short paid or erroneously refunded or input tax
credit wrongly availed or utilised for such periods other than those
covered under sub-section (1), on the person chargeable with tax.
(4) The service of statement under sub-section (3) shall be deemed to
be service of notice under sub-section (1) of Section 73, subject to
the condition that the grounds relied upon in the said statement,
except the ground of fraud, or any wilful-misstatement or
suppression of facts to evade tax, for periods other than those
covered under sub-section (1) are the same as are mentioned in the
earlier notice.
(5) The person chargeable with tax may, before service of notice
under sub-section (1), pay the amount of tax along with interest
payable under Section 50 and a penalty equivalent to fifteen per cent.
of such tax on the basis of his own ascertainment of such tax or the
tax as ascertained by the proper officer and inform the proper officer
in writing of such payment.
(6) The proper officer, on receipt of such information, shall not serve
any notice under sub-section (1), in respect of the tax so paid or any
penalty payable under the provisions of this Act or the rules made
thereunder.
(7) Where the proper officer is of the opinion that the amount paid
under sub-section (5) falls short of the amount actually payable, he
shall proceed to issue the notice as provided for in sub-section (1) in
respect of such amount which falls short of the amount actually
payable.
(8) Where any person chargeable with tax under sub-section (1) pays
the said tax along with interest payable under Section 50 and a
penalty equivalent to twenty-five per cent. of such tax within thirty
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days of issue of the notice, all proceedings in respect of the said
notice shall be deemed to be concluded.
(9) The proper officer shall, after considering the representation, if
any, made by the person chargeable with tax, determine the amount
of tax, interest and penalty due from such person and issue an order.
(10) The proper officer shall issue the order under sub-section (9)
within a period of five years from the due date for furnishing of
annual return for the financial year to which the tax not paid or short
paid or input tax credit wrongly availed or utilised relates to or
within five years from the date of erroneous refund.
(11) Where any person served with an order issued under sub-section
(9) pays the tax along with interest payable thereon under Section 50
and a penalty equivalent to fifty per cent. of such tax within thirty
days of communication of the order, all proceedings in respect of the
said notice shall be deemed to be concluded.
[(12) The provisions of this section shall be applicable for
determination of tax pertaining to the period up to Financial Year
2023-24.]
Explanation 1.–For the purposes of Section 73 and this section,–
(i) the expression “all proceedings in respect of the said
notice” shall not include proceedings under Section 132;
(ii) where the notice under the same proceedings is issued to
the main person liable to pay tax and some other persons,
and such proceedings against the main person have been
concluded under Section 73 or Section 74, the proceedings
against all the persons liable to pay penalty under [Sections
122 and 125] are deemed to be concluded.
Explanation 2.–[* * *]”
20. We have chosen to extract those provisions for the sake of
completeness and notwithstanding the petitioners asserting that by
virtue of Section 174(2) of the CGST Act, and which constitutes the
‘Repeal and Saving’ clause, it would be the provisions of the 1994 Act
which would govern.
21. In terms of Section 73(1) of the CGST Act, which is principally
concerned with cases other than where allegations of fraud, wilful
misstatement or suppression of facts are made, and pertains to tax
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incorrectly computed, erroneously refunded or benefits wrongly
availed, sets out terminal points within which action referable to that
provision would have to be commenced and concluded. A final order on
the culmination of adjudication is liable to be framed by the proper
officer in terms contemplated under Section 73(9) of the CGST Act. By
virtue of sub-section (10) thereof, the proper officer is bound to frame
such an order within three years from the due date for furnishing of an
annual return. A notice commencing proceedings referable to Section
73 must be issued at least three months prior to the time limit as
specified in sub-section (10) coming to an end. It is relevant to observe
that Section 73(10) of the CGST Act uses the words “shall issue” and
does not adopt the “where it is possible to do so” phraseology as
employed by the Customs Act and 1994 Act. Similar is the position that
obtains in cases where fraud, wilful misstatement or suppression of
facts may be alleged, and in which eventuality it is the provisions of
Section 74 of the CGST Act which would govern.
III. THE “PROPER OFFICER” CONUNDRUM
22. Before proceeding further, we deem it appropriate to take note of
certain judicial interventions and which cast a doubt on the jurisdiction
and authority of officers of the DRI to undertake an adjudication or
determination of duty/interest under the Customs Act. In Sayed Ali, the
Supreme Court was called upon to examine the correctness of the view
expressed by the Customs Excise & Service Tax Appellate
Tribunal 14, namely, that the Commissioner of Customs (Preventive)
would not be liable to be recognised as a “proper officer” as defined in14
CESTAT
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Section 2(34) of the Customs Act. Ruling on that issue, the Supreme
Court in Sayed Ali held that on a conjoint reading of Sections 2(34) and
28 of the Customs Act, only a customs officer who may have been
assigned the function of assessment in respect of entities falling in a
particular jurisdictional area could be viewed as competent to issue
notice and undertake an adjudication. The Supreme Court also negated
the Revenue’s contention that once territorial jurisdiction had come to
be conferred upon the Commissioner of Customs (Preventive), the said
authority would be liable to be treated as a “proper officer” for
purposes of Section 28. This becomes evident from a reading of the
following paragraphs of Sayed Ali:
“20. From a conjoint reading of Sections 2(34) and 28 of the Act, it
is manifest that only such a Customs Officer who has been assigned
the specific functions of assessment and reassessment of duty in the
jurisdictional area where the import concerned has been affected, by
either the Board or the Commissioner of Customs, in terms of
Section 2(34) of the Act is competent to issue notice under Section
28 of the Act. Any other reading of Section 28 would render the
provisions of Section 2(34) of the Act otiose inasmuch as the test
contemplated under Section 2(34) of the Act is that of specific
conferment of such functions.
21. Moreover, if the Revenue’s contention that once territorial
jurisdiction is conferred, the Collector of Customs (Preventive)
becomes a “proper officer” in terms of Section 28 of the Act is
accepted, it would lead to a situation of utter chaos and confusion,
inasmuch as all officers of Customs, in a particular area be it under
the Collectorate of Customs (Imports) or the Preventive Collectorate,
would be “proper officers”. In our view, therefore, it is only the
officers of Customs, who are assigned the functions of assessment,
which of course, would include reassessment, working under the
jurisdictional Collectorate within whose jurisdiction the bills of entry
or baggage declarations had been filed and the consignments had
been cleared for home consumption, will have the jurisdiction to
issue notice under Section 28 of the Act.
xxxx xxxx xxxx
24. Nothing has been brought on record to show that the Collector of
Customs (Preventive), who had issued the show-cause notices was
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assigned the functions under Section 28 of the Act as “proper
officer” either by the Board or the Collector/Commissioner of
Customs. We are convinced that Notifications Nos. 250-Cus. and
251-Cus., both dated 27-8-1983, issued by the Central Government
in exercise of the powers conferred by sub-section (1) of the Section
4 of the Act, appointing Collector of Customs (Preventive), etc. to be
the Collector of Customs for Bombay, Thane and Kolaba Districts in
the State of Maharashtra did not ipso facto confer jurisdiction on him
to exercise power entrusted to the “proper officers” for the purpose
of Section 28 of the Act.”
23. A similar issue again arose for consideration of the Supreme
Court in Canon I. On this occasion, the Supreme Court was called upon
to answer whether officers of the DRI had the authority to initiate
proceedings referable to Section 28(4) of the Customs Act. In Canon I,
the Supreme Court ultimately came to hold against the Revenue when it
came to render a finding that the Additional Director of the DRI would
not be the “proper officer”. We deem it apposite to extract the following
paragraphs from that decision:
“16. It is obvious that the reassessment and recovery of duties i.e.
contemplated by Section 28(4) is by the same authority and not by
any superior authority such as appellate or revisional authority. It is,
therefore, clear to us that the Additional Director General of DRI
was not “the” proper officer to exercise the power under Section
28(4) and the initiation of the recovery proceedings in the present
case is without any jurisdiction and liable to be set aside.
17. At this stage, we must also examine whether the Additional
Director General of the DRI who issued the recovery notice under
Section 28(4) was even a proper officer. The Additional Director
General can be considered to be a proper officer only if it is shown
that he was a Customs Officer under the Customs Act. In addition,
that he was entrusted with the functions of the proper officer under
Section 6 of the Customs Act. The Additional Director General of the
DRI can be considered to be a Customs Officer only if he is shown
to have been appointed as Customs Officer under the Customs Act.
xxxx xxxx xxxx
23. If it was intended that officers of the Directorate of Revenue
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entrusted with functions of the Customs Officers, it was imperative
that the Central Government should have done so in exercise of its
power under Section 6 of the Act. The reason why such a power is
conferred on the Central Government is obvious and that is because
the Central Government is the authority which appoints both the
officers of the Directorate of Revenue Intelligence which is set up
under the Notification dated 4-12-1957 issued by the Ministry of
Finance and Customs Officers who, till 11-5-2002, were appointed
by the Central Government. The notification which purports to
entrust functions as proper officer under the Customs Act has been
issued by the Central Board of Excise and Customs in exercise of
non-existing power under Section 2(34) of the Customs Act. The
notification is obviously invalid having been issued by an authority
which had no power to do so in purported exercise of powers under a
section which does not confer any such power.
xxxx xxxx xxxx
25. We, therefore, hold that the entire proceeding in the present case
initiated by the Additional Director General of the DRI by issuing
show-cause notices in all the matters before us are invalid without
any authority of law and liable to be set aside and the ensuing
demands are also set aside.”
The view expressed in Canon I thus affirmed the position which had
come to be enunciated in Sayed Ali.
24. Between the judgments in Sayed Ali and Canon I coming to be
pronounced, the Amendment and Validation Act came to be
promulgated. By virtue of that statute, sub-section (11) came to be
inserted in Section 28 and which essentially provided that
notwithstanding any judgment or order of a court of law, officers
attached to the Commissionerate of Customs (Preventive), as well as
the DRI would be “deemed to have and have always had the power” of
assessment under Section 17 and that they would be always deemed to
have been “proper officers” for the purposes of Section 28.
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25. The validity of this amendment came to be questioned before this
Court in Mangali Impex. Our Court in Mangali Impex came to record
the following conclusions:
“61. Keeping the above principles in mind when section 28 has been
recasted by Act 8 of 2011 with effect from April 8, 2011 read with
section 28(11) which was introduced by the Customs (Amendment
and Validation) Act, 2011 with effect from September 16, 2011, the
position that emerges is as under :
(i) Section 28(11) states that all persons appointed as
customs officers prior to July 6, 2011 will be deemed to
always have had the power of assessment under section 17
and shall be deemed to always have been “proper officers”.
Further, this is notwithstanding anything to the contrary in
any judgment, decree or order of any court of law. While the
said provision is intended to overcome the defect pointed
out in the decision of the Supreme Court in Sayed Ali
[2011] 7 GSTR 338 (SC), section 28(11) of the Act does not
state that it would operate notwithstanding anything
contained either in the Act or any other Act for the time
being in force. In other words, the Legislature has not made
it explicit that section 28(11) would prevail notwithstanding
anything contained in Explanation 2 to section 28 of the
Act.
(ii) On the contrary, Explanation 2 which, as it presently
stands, appears after section 28(11) of the Act as already
stood enacted with effect from April 8, 2011 opens with the
words “for the removal of doubts”. It is made clear that non-
levy, short-levy or erroneous refund prior to April 8, 2011
would be governed by section 28 “as it stood immediately
before the date on which such assent is received”.
(iii) Section 28(11), as it presently stands, was not in the
statute book prior to April 8, 2011. Therefore, no reference
can be made to section 28(11) of the Act for determining not
only the procedure but the very basis on which a non-levy,
short-levy or erroneous refund occurring prior to April 8,
2011 should be dealt with.
(iv) Prior to April 8, 2011 and even subsequent thereto, only
a “proper officer” who has been “assigned” specific
functions by the Central Board of Excise and Customs or
the Commissioner as amended by section 2(34) of the Act
could undertake the task of non-levy, short-levy or
erroneous
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refund. Therefore, for any non-levy, short-levy or erroneous
refund prior to April 8, 2011, an officer of the customs who
has not been specifically assigned such function in terms of
the Act cannot exercise such power.
(v) Section 28(11), therefore, does not validate the show-
cause notices issued by the Directorate of Revenue
Intelligence, Directorate General of Central Excise
Intelligence officers who are not “proper officers” for the
purposes of section 2(34) of the Act if it amounted to
undertaking any assessment or reassessment of a non-levy,
short-levy or erroneous refund prior to April 8, 2011.
(vi) It is only for a period between April 8, 2011 and July 6,
2011 that such deemed “proper officer” can be said to have
been given retrospective power to deal with non-levy, short-
levy or erroneous refund for any period subsequent to April
8, 2011, i.e., the date on which section 28(11) read with
Explanation 2 could be said to have come into force.
Section 28(11) gives untrammelled power
62. There is merit in the contention that section 28(11) is overbroad
inasmuch as it confers jurisdiction on a plurality of officers on the
same subject matter which would result in chaos, harassment,
contrary and conflicting decisions. Such untrammelled power would
indeed be arbitrary and violative of article 14 of the Constitution.
xxxx xxxx xxxx
Effect of section 28(11)
66. The mere fact that section 28(11) has been given retrospective
effect does not solve the essential problem pointed out by the
Supreme Court in Sayed Ali case [2011] 7 GSTR 338 (SC), which is
the absence of the assigning of functions to “proper officers” under
section 2(34) of the Act. The even more serious problem is the
impossibility of reconciling two contradictory provisions, viz.,
Explanation 2 to section 28 and section 28(11) of the Act.
67. The words “this section” in the newly inserted sub-section (11) of
section 28 obviously refers to section 28 as enacted with effect from
April 8, 2011 and not section 28 which existed prior to that date. The
effect of section 28(11) is to treat all officers of the customs to be
“proper officers” only for the purposes of new section 28 of the Act
and not the earlier section 28 of the Act. In particular, there is no
validation of the show-cause notices issued prior to the amendment
of section 28 of the Act. As observed in Delhi Cloth and General
Mills Co. Ltd. v. State of Rajasthan (1962) 2 SCC 449 a legal
consequence cannot be deemed nor, therefrom, can the events that
should have preceded it. The past actions of the officers of the
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Directorate of Revenue Intelligence and Directorate General of
Central Excise Intelligence who are not designated as “proper
officer” in issuing show- cause notices for the period prior to April 8,
2011 have not been validated.
68. There is also merit in the contention of the petitioners that
section 28(11) confers validity only on “the proper officer”. As
explained in Consolidated Coffee Ltd. v. Coffee Board [1980] 46
STC 164 (SC), the use of article “the” as opposed to “an” or “any” is
indeed significant. Only officers who have been assigned the
functions of the “proper officer” for the purposes of section 17, i.e.,
assessment of the bills of entry can be considered as the proper
officer for the purposes of section 28(11) of the Act. As further
explained in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. [2001]
105 Comp Cas 1 (SC), the article “the” always denotes a particular
thing or person.
69. The court also finds merit in the contention that if jurisdiction is
exercised by one officer of the customs or of the Directorate of
Revenue Intelligence or Directorate General of Central Excise
Intelligence, it should impliedly oust the jurisdiction of other officers
over the same subject matter. The doctrine of comity of jurisdiction
requires that for the proper administration of justice there should not
be an overlapping of the exercise of powers and functions. The
decision of the Punjab and Haryana High Court in Kenapo Textiles P.
Ltd. v. State of Haryana [1992] 84 STC 88 (P&H) and the decision
of the Supreme Court in India Household and Healthcare Ltd. v. LG
Household and Healthcare Ltd. [2007] 136 Comp Cas621 (SC) are
relevant in this context.
Conclusion on effect and validity of section 28(11)
70. The net result of the above discussion is that the Department
cannot seek to rely upon section 28(11) of the Act as authorising the
officers of the customs, Directorate of Revenue Intelligence,
Directorate General of Central Excise Intelligence, etc., to exercise
powers in relation to non-levy, short-levy or erroneous refund for a
period prior to April 8, 2011 if, in fact, there was no proper assigning
of the functions of reassessment or assessment in favour of such
officers who issued such show-cause notices since they were not
“proper officers” for the purposes of section 2(34) of the Act and
further because Explanation 2 to section 28 as presently enacted
makes it explicit that such non-levy, short-levy or erroneous refund
prior to April 8, 2011 would continue to be governed only by section
28 as it stood prior to that date and not the newly recast section 28 of
the Act.
Section 28(11) interpreted in the above terms would not
suffer the vice of unconstitutionality. Else, it would grant wide
powers of assessment and enforcement to a wide range of officers,
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not limited to customs officers, without any limits as to territorial
and subject matter jurisdiction and in such event the provision would
be vulnerable to being declared unconstitutional.
As regards the period subsequent to April 8, 2011, it is
evident that if the administrative chaos as envisaged by the Supreme
Court in Sayed Ali [2011] 7 GSTR 338 (SC) should not come about,
there cannot be any duplicating and/or overlapping of jurisdiction of
the officers. It would have to be ensured through proper co-
ordination and administrative instructions issued by the Central
Board of Excise and Customs that once a show-cause notice is
issued specifying the adjudicating officer to whom it is answerable,
then that adjudication officer, subject to such officer being a “proper
officer” to whom the function of assessment has been assigned in
terms of section 2(34) of the Act, will alone proceed to adjudicate
the show-cause notice to the exclusion of all other officers who may
have the power in relation to that subject matter.
The question as to the constitutional validity and effect of
section 28(11) of the Act is answered accordingly.”
The judgment rendered by our Court in Mangali Impex was subjected
to challenge in Civil Appeal No. 6142/2019 before the Supreme Court
and where in terms of an interim order dated 01 August 2016, the
judgment was stayed.
26. More recently, the Supreme Court ruled on a review petition
which had been filed by the Revenue and in terms whereof the
correctness of the judgment in Canon I was urged to be reconsidered.
That review petition ultimately came to be allowed in Commr. of
Customs vs. Canon India (P) Ltd. 15 with the Supreme Court
observing as follows:
“F. CONCLUSION
168. In view of the aforesaid discussion, we conclude that:
(i) DRI officers came to be appointed as the officers of
customs vide Notification No. 19/90-Cus (N.T.) dated 26.04.1990
issued by the Department of Revenue, Ministry of Finance,
Government of India. This notification later came to be superseded
15
2024 SCC OnLine SC 3188; Canon II
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by Notification No. 17/2002 dated 07.03.2002 issued by the
Department of Revenue, Ministry of Finance, Government of India,
to account for administrative changes.
(ii) The petition seeking review of the decision in Canon
India (supra) is allowed for the following reasons:
a. Circular No. 4/99-Cus dated 15.02.1999 issued by the
Central Board of Excise & Customs, New Delhi which
empowered the officers of DRI to issue show cause notices
under Section 28 of the Act, 1962 as well as Notification
No. 44/2011 dated 06.07.2011 which assigned the functions
of the proper officer for the purposes of Sections 17 and 28
of the Act, 1962 respectively to the officers of DRI were not
brought to the notice of this Court during the proceedings
in Canon India (supra). In other words, the judgment
in Canon India (supra) was rendered without looking into
the circular and the notification referred to above thereby
seriously affecting the correctness of the same.
b. The decision in Canon India (supra) failed to consider the
statutory scheme of Sections 2(34) and 5 of the Act, 1962
respectively. As a result, the decision erroneously recorded
the finding that since DRI officers were not entrusted with
the functions of a proper officer for the purposes of Section
28 in accordance with Section 6, they did not possess the
jurisdiction to issue show cause notices for the recovery of
duty under Section 28 of the Act, 1962.
c. The reliance placed in Canon India (supra) on the
decision in Sayed Ali (supra) is misplaced for two reasons –
first, Sayed Ali (supra) dealt with the case of officers of
customs (Preventive), who, on the date of the decision
in Sayed Ali (supra) were not empowered to issue show
cause notices under Section 28 of the Act, 1962 unlike the
officers of DRI; and secondly, the decision in Sayed
Ali (supra) took into consideration Section 17 of the Act,
1962 as it stood prior to its amendment by the Finance Act,
2011. However, the assessment orders, in respect of which
the show cause notices under challenge in Canon
India (supra) were issued, were passed under Section 17 of
the Act, 1962 as amended by the Finance Act, 2011.
(iii) This Court in Canon India (supra) based its judgment on two
grounds : (1) the show cause notices issued by the DRI officers were
invalid for want of jurisdiction; and (2) the show cause notices were
issued after the expiry of the prescribed limitation period. In the
present judgment, we have only considered and reviewed the
decision in Canon India (supra) to the extent that it pertains to the
first ground, that is, the jurisdiction of the DRI officers to issue show
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cause notices under Section 28. We clarify that the observations
made by this Court in Canon India (supra) on the aspect of
limitation have neither been considered nor reviewed by way of this
decision. Thus, this decision will not disturb the findings of this
Court in Canon India (supra) insofar as the issue of limitation is
concerned.
(iv) The Delhi High Court in Mangali Impex (supra) observed that
Section 28(11) could not be said to have cured the defect pointed out
in Sayed Ali (supra) as the possibility of chaos and confusion would
continue to subsist despite the introduction of the said section with
retrospective effect. In view of this, the High Court declined to give
retrospective operation to Section 28(11) for the period prior to
08.04.2011 by harmoniously construing it with Explanation 2 to
Section 28 of the Act, 1962. We are of the considered view that the
decision in Mangali Impex (supra) failed to take into account the
policy being followed by the Customs department since 1999 which
provides for the exclusion of jurisdiction of all other proper officers
once a show cause notice by a particular proper officer is issued. It
could be said that this policy provides a sufficient safeguard against
the apprehension of the issuance of multiple show cause notices to
the same assessee under Section 28 of the Act, 1962. Further, the
High Court could not have applied the doctrine of harmonious
construction to harmonise Section 28(11) with Explanation 2
because Section 28(11) and Explanation 2 operate in two distinct
fields and no inherent contradiction can be said to exist between the
two. Therefore, we set aside the decision in Mangali Impex (supra)
and approve the view taken by the High Court of Bombay in the case
of Sunil Gupta (supra).
(v) Section 97 of the Finance Act, 2022 which, inter-alia,
retrospectively validated all show cause notices issued under Section
28 of the Act, 1962 cannot be said to be unconstitutional. It cannot
be said that Section 97 fails to cure the defect pointed out in Canon
India (supra) nor is it manifestly arbitrary, disproportionate and
overbroad, for the reasons recorded in the foregoing parts of this
judgment. We clarify that the findings in respect of the vires of
the Finance Act, 2022 is confined only to the questions raised in the
petition seeking review of the judgment in Canon India (supra). The
challenge to the Finance Act, 2022 on grounds other than those dealt
with herein, if any, are kept open.
(vi) Subject to the observations made in this judgment, the officers
of Directorate of Revenue Intelligence, Commissionerates of
Customs (Preventive), Directorate General of Central Excise
Intelligence and Commissionerates of Central Excise and other
similarly situated officers are proper officers for the purposes of
Section 28 and are competent to issue show cause notice thereunder.
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Therefore, any challenge made to the maintainability of such show
cause notices issued by this particular class of officers, on the ground
of want of jurisdiction for not being the proper officer, which remain
pending before various forums, shall now be dealt with in the
following manner:
a. Where the show cause notices issued under Section 28 of
the Act, 1962 have been challenged before the High Courts
directly by way of a writ petition, the respective High Court
shall dispose of such writ petitions in accordance with the
observations made in this judgment and restore such notices
for adjudication by the proper officer under Section 28.
b. Where the writ petitions have been disposed of by the
respective High Court and appeals have been preferred
against such orders which are pending before this Court,
they shall be disposed of in accordance with this decision
and the show cause notices impugned therein shall be
restored for adjudication by the proper officer under Section
28.
c. Where the orders-in-original passed by the adjudicating
authority under Section 28 have been challenged before the
High Courts on the ground of maintainability due to lack of
jurisdiction of the proper officer to issue show cause
notices, the respective High Court shall grant eight weeks’
time to the respective assessee to prefer appropriate appeal
before the Customs Excise and Service Tax Appellate
Tribunal (CESTAT).
d. Where the writ petitions have been disposed of by the
High Court and appeals have been preferred against them
which are pending before this Court, they shall be disposed
of in accordance with this decision and this Court shall
grant eight weeks’ time to the respective assessee to prefer
appropriate appeals before the CESTAT.
e. Where the orders of CESTAT have been challenged
before this Court or the respective High Court on the
ground of maintainability due to lack of jurisdiction of the
proper officer to issue show cause notices, this Court or the
respective High Court shall dispose of such appeals or writ
petitions in accordance with the ruling in this judgment and
restore such notices to the CESTAT for hearing the matter
on merits.
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before the CESTAT, they shall now be decided in
accordance with the observations made in this decision.
169. In view of the aforesaid, we allow the Review Petition No.
400/2021 titled Commissioner of Customs v. Canon India Pvt.
Ltd. and the connected Review Petition Nos. 401/2021, 402/2021
and 403/2021 insofar as the issue of jurisdiction of the proper officer
to issue show cause notice under Section 28 is concerned. As
discussed, the findings of this Court in Canon India (supra) in
respect of the show cause notices having been issued beyond the
limitation period remain undisturbed.
170. We set aside the decision of the High Court of Delhi rendered in
the case of Mangali Impex (supra) and uphold the view taken by the
High Court of Bombay in the case of Sunil Gupta (supra). We also
uphold the constitutional validity of Section 97 of the Finance Act,
2022.”
27. It is the decision rendered in Canon II on 07 November 2024
which appears to have conclusively settled the dispute which had
festered from the time when the Supreme Court had handed down its
judgment in Sayed Ali. The confusion that prevailed with respect to the
authority of the DRI or officers attached to the Preventive Division to
undertake an adjudication owed its genesis to the judgment and thus
started on 18 February 2011 when judgment came to be pronounced in
Sayed Ali that was perpetuated by Mangali Impex on 03 May 2016 and
continued by Canon I judgment whereon was pronounced on 09 March
2021. The confusion that had prevailed ultimately came to be dispelled
and laid to rest when the review petition came to be allowed by the
Supreme Court in Canon II.
28. From the details which have been provided by the respondents in
these proceedings, it would appear that the Revenue had, for quite some
time, been following the process of placing open and unresolved cases
pertaining to adjudication in the call book. The placement of matters in
the call book was in line with instructions issued by the Board from
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time to time requiring adjudicating authorities to place pending
adjudication proceedings in abeyance, some of which had been placed
for our perusal. One of the earliest of those instructions to which our
attention was drawn is dated 29 June 2016 and reads thus:
“INSTRUCTION F.NO.276/104/2016-CX.8A (PT.)
INCLUSION OF SHOW CAUSE NOTICES ISSUED IN
RELATION TO SECTION 28(11) OF CUSTOMS ACT, 1962
ON COMPETENCY OF OFFICERS OF DGDRI, DGCEI AND
CUSTOMS (PREV.), IN CALL BOOKINSTRUCTION F.NO.276/104/2016-CX.8A (PT.), DATED 29-6-
2016
The Hon’ble High Court of Delhi vide the order dated 3-5-2016 in
the case of Mangali Impex Ltd. in WP No. 441/2013 and others held
that sub-section (11) of section 28 of the Customs Act, 1962 cannot
validate SCNs or proceedings pursuant thereto in relation to non-
levy, short-levy or erroneous refund for the period prior to 8th April
2011, if such SCNs have been issued or proceedings conducted by
officers of the Customs, DGDRI or DGCEI or as in the present case
by the SIIB, who are not ‘proper officers’ within the meaning of sub-
section (34) of section 2 of the Act.
2. In this regard it may be mentioned that the amendment in section
28 (11) of the Customs Act, 1962 was brought out by the
Government, after the decision of Supreme Court in Commissioner
of Customs v. Sayed Ali (2011) 3 SCC 537, wherein it was held that
Customs Preventive Officers are not proper officers to issue Show
Cause Notice u/s 28 of Customs Act, 1962. Vide Notification
No.44/2011, dated 6-7-2011, Board assigned the functions of proper
Officers to the officers of DGDRI, DGCEI and Preventive. Further,
in the Statement of Facts and Reasons to the Customs (Amendment
and Validation), Bill, 2011, while introducing sub-section 11 of
section 28 of the customs Act,1962, the then FM had expressly
mentioned that it has purposed to amend the Customs Act, 1962
retrospectively. Thus, the intention of Legislature was clearly spelt
out. Therefore, the officers of DGDRI, DGCEI and Preventive are
Proper Officers even for the Show Cause Notices issued prior to
issuance of Notification dated 6-7-2011. Since the order dated 3-5-
2016 of High Court of Delhi challenges the constitutional validity of
sub-section (11) of section 28 of the Customs Act, 1962, the Board
has decided to file an SLP in the case i.e. W.P. No. 441/2013 before
the Hon’ble Supreme Court.
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3. In view of the above, field formations are requested to transfer all
the SCNs issued by DRI, DGCEI, SIIB, Preventive prior to 6-7-2011
and which are pending adjudication to the Call Book, till disposal of
the matter in the Supreme Court.
4. Difficulties faced, if any, in implementation of this Circular may
be brought to the notice of the Board.”
29. By way of exemplar, we also extract an instruction dated 17
March 2021 as issued by the Board hereinbelow:
“Instruction No.04/20221-Customs
F. No.450/72/2021-Cus-IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
xxxxxxRoom No.227B, North Block, New Delhi
Dated the 17th of March, 2021.
To
Principal Additional Director General,
Directorate General of Intelligence (DRI),
New Delhi.
Sir,
Subject: Show Cause Notice (SCN) dated 19.03.2019 issued
by DRI against Sh. Anil Aggarwal and 11 others –
Directions to keep SCN pending -reg.
Reference is invited to the letters from your office drawing
attention to the judgment dated 09.03.2021 of the Hon’ble Supreme
Court in Civil Appeal No. 1827 of 2018 in the case of M/s Canon
India Private Limited vs Commissioner of Customs. Vide the said
judgement, the Hon’ble Apex Court has ruled that the Additional
Director General (ADG) of Directorate of Revenue Intelligence
(DRI) is not the proper officer to issue Show Cause Notice (SCN)
under sub-section (4) of section 28 of the Customs Act, 1962. The
Apex Court has concluded that the entire proceeding in the present
case initiated by ADG (DRI) by issuing SCN, as invalid and without
any authority of law. The Apex Court has accordingly set aside the
subject SCN.
2. Further, attention is drawn to the specific reference for
seeking Board’s direction with respect to SCN dated 19.03.2019
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against Sh. Anil Aggarwal and 11 others where the adjudication of
the SCN would get barred by the limitation of time on 18th March,
2021 under sub-section (9) of section 28 of the Customs Act, 1962,
on account of the inability to proceed further due to the said
judgement of the Hon’ble Supreme Court.
3. The matter has been examined. The implications of the said
judgement are under active examination in the Board. Therefore, the
Board has decided that for the present and until further directions,
the said SCN may be kept pending.
4. Further, all the fresh SCNs under Section 28 of the Customs
Act, 1962 in respect of cases presently being investigated by DRI are
required to be issued by jurisdictional Commissionerates from where
imports have taken place.
5. Difficulties, if any, may please be brought to the notice of
Board. Hindi version follows.
Yours faithfully,
(Ananth Rathakrishnan)
Deputy Secretary (Customs)”
IV. FACTUAL NARRATIVE
30. Having noticed the relevant statutory provisions, as well as the
judgments rendered by Courts from time to time, we propose to now
deal with the facts that individually obtain in some of the writ petitions
forming part of this batch. For our assistance and in order to explain the
cause behind the asserted inordinate delay, the respondents had placed
on the record a detailed chart that sought to encapsulate the different
stages of proceedings in respect of each of the writ petitioners
commencing from the issuance of the original SCN, transfer to the call
book and the passing of final orders in some of those cases. The
consolidated chart is adopted and made part of this judgment as
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31. From the facts which can be gleaned from W.P.(C) 16163/2023,
the following position emerges. The SCN in that matter came to be
issued originally on 22 December 2006. According to the respondents,
on 29 June 2016 the said proceedings were transferred to the call book
on the basis of the instructions issued by the Board and which in turn
was based on the judgment which had by then come to be pronounced
in Mangali Impex. The SCN is thereafter stated to have been taken out
from the call book on 03 January 2017 pursuant to the Board’s
Instructions which were issued on the same date. It thereafter came to
be transferred back to the call book on 03 November 2017 pursuant to
directives of the Board and retrieved therefrom on 03 May 2019. On 17
March 2021, the SCN was again transferred to the call book for a third
time and taken out on 09 April 2022, pursuant to Section 97 of the
Finance Act, 2022 16 coming into force. Additionally, according to the
respondents, personal hearings were held on 17 April 2012, 13 October
2014, 02 December 2020 and 11 August 2023. According to them, the
matter was inordinately delayed since the petitioner repeatedly
requested for Relied Upon Documents 17 to be provided in the course
of the personal hearings which were held.
32. However, and as is manifest from the record, although the SCN
was originally issued on 22 December 2006 it came to be transferred to
the call book for the first time only on 29 June 2016, the respondents
have failed to proffer any explanation for this delay of almost 10 years
even though no restraint operated upon the right of the authorities to
finalize the adjudication during this period.
16
2022 Act
17
RUD
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33. Another case which emanates from the Customs Act is W.P.(C)
12425/2023 and where the SCN is dated 20 December 2012. In this
case also the proceedings are yet to be concluded. As per the
disclosures made by the respondents, in terms of an order of the Board
dated 31 January 2013, the SCN proceedings were assigned to the
Commissioner of Customs, ICD-Tughlakabad. Thereafter, the
Additional Director General of the DRI was appointed as the Common
Adjudicating Authority on 12 January 2016 and the proceedings were
thus transferred from the Commissioner of Customs, ICD-Tughlakabad
to the Additional Director General of the DRI on 14 June 2016.
However, and as is evident from the details provided and encapsulated
in Appendix A, all that has happened since then is the matter being
initially transferred to the call book, retrieved therefrom subsequently,
certain dates for personal hearing being fixed and yet the proceedings
not being accorded closure.
34. This would be an appropriate juncture to also notice some of the
cases where a final order of adjudication may have come to be passed
under the Customs Act. One such matter is W.P.(C) 3705/2024 and
where proceedings commenced pursuant to a SCN dated 25 February
2009. The final adjudication order has come to be framed on 23 January
2024. Hereto, the proceedings were initially placed in abeyance
consequent to a transfer to the call book on 29 June 2016 from where it
was retrieved on 03 January 2017 and inexplicably transferred back on
03 November 2017. It remained in the call book for a period of almost
two years till it was taken out on 03 May 2019 and placed yet again in
that book on 17 March 2021. Pursuant to the 2022 Act, it was finally
taken out of the call book on 01 April 2022.
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35. The cases of W.P.(C) Nos. 3737/2024, 3753/2024 and 3755/2024
wherein final adjudication orders have come to be passed follow an
identical route. However, the respondents have abjectly failed to
provide any explanation for the period between 2009 when the SCN
was originally issued and 2016, when it was placed in the call book for
the first time.
36. A stark example of a failure to conclude the adjudicatory process
with expedition is represented by W.P.(C) 5896/2024. Proceedings in
this case commenced pursuant to the issuance of a SCN on 23
December 2006 and saw the passing of a final order on 08 February
2024. According to the respondents, although approximately 80 dates of
personal hearing are stated to have been fixed between 2008 to 2023,
the noticees regularly sought adjournment on one pretext or another and
failed to appear and participate in the hearings. However, we find that
in this particular case, although the proceedings stood transferred to the
call book on only one occasion, the respondents do not proffer any
explanation as to why, and if they were of the opinion that the noticees
were deliberately delaying the conclusion of proceedings, they did not
proceed ex parte.
37. W.P.(C) 4831/2024 represents one of the cases in which the SCN
was issued on 29 November 2019 and thus after amendments had come
to be introduced in Section 28 by virtue of the 2018 Act. The
proceedings in that case are still to see a conclusion. In fact, and as per
the respondents, supplementary SCNs’ came to be issued in that matter
on 20 April 2020 and 18 September 2020. The adjudication proceedings
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the instructions of the Board dated 17 March 2021 and which are
sought to be sustained on the anvil of Section 28(9-A) (c) of the
Customs Act. According to the respondents, the statement of an
advocate connected with the investigation was recorded on 15
September 2020 and dates for personal hearing fixed on 07 April 2020,
29 July 2020 and 15 September 2020. The respondents additionally rely
upon the order passed by the Supreme Court in In Re: Cognizance For
Extension Of Limitation 18 and the exclusion of the period between 15
March 2020 to 15 March 2022 to explain their inaction.
38. The last of the cases emanating from the Customs Act which we
propose to notice is that of W.P.(C) 15971/2023 and where proceedings
were initiated pursuant to a SCN dated 23 December 2006. From the
details provided by the respondents, certain dates for personal hearing
appear to have been fixed in 2009, 2012, 2014, 2017, 2020 and lastly in
2023. In this matter too, directions were issued for the proceedings
being transferred to the call book on 29 June 2016 and where it
remained till it was transferred out on 03 January 2017. It, however, got
transferred back to the call book on 03 November 2017 and remained
there till it was extracted therefrom on 03 May 2019. Thereafter, it was
transferred to the call book again on 17 March 2021 and called out on
31 March 2022. The respondents, however, in this matter too have
failed to explain the delay between the issuance of the SCN and the first
date when proceedings were transferred to the call book.
39. W.P.(C) 6146/2024 arises from the 1994 Act and in respect of
which SCNs were issued on 20 April 2012 and 16 October 2012. Here a18
Suo Motu W.P.(C) 3/2020 dated 08 March 2021
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final order has come to be passed on 28 March 2024. The personal
hearing dates relevant to this case are stated to be 25 April 2018 and 24
January 2024. From the disclosures made by the respondents in
connection with this case, we yet again find no explanation provided
for the inaction during the period between 2012 and 2018. Yet another
case emanating from the 1994 Act is W.P.(C) 6147/2024, where the
SCN was issued on 26 October 2018 and the proceedings finalized in
terms of an order passed on 28 March 2024. In this particular case, the
proceedings were never transferred to the call book.
40. While noticing matters arising out of the 1994 Act, we also deem
it apposite to take note of the facts as they obtain in W.P.(C) 6429/2024
wherein although the SCN was issued on 20 March 2020, a final order
came to be passed only on 16 January 2024. Although the proceedings
pertaining to this particular assessee were never placed in the call book,
the respondents assert that delay was caused on account of the outbreak
of the Covid-19 pandemic. They would additionally contend that
Section 73(4B) of the 1994 Act is liable to be viewed as being directory
since it adopts the expression “where it is possible to do so”.
V. SUBMISSIONS OF PARTIES
41. Leading submissions on behalf of the writ petitioners, Mr. Gulati,
learned senior counsel firstly drew our attention to the judgment
rendered by the Division Bench of the Bombay High Court in Parle
International Ltd. vs. UOI 19. Here, the proceedings were originally
commenced in terms of SCNs’ issued in 2006 and whereafter
proceedings went into a limbo. They were sought to be revived for the
19
2020 SCC OnLine Bom 8678
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first time after almost 13 years. It was in the aforesaid backdrop that the
High Court formulated the relevant issue to be whether a delayed
adjudication could be sustained. While dealing with this aspect the
Bombay High Court held as follows:
“19. Way back in 1983, this court in Bhagwandas S. Tolani v. B. C.
Aggarwal (1983) 12 ELT 44 (Bom) examined an adjudication
proceeding which was started after 11 years of issue of show-cause
notice. It was held that a stale matter could not be allowed to be
reopened since to allow it to be reopened would cause serious
detriment and prejudice to the petitioner. When the Department had
contended that there was no limitation in commencing adjudication
proceedings, this court held that if such contentions as to limitation
were to be accepted, it would mean that the Department can
commence adjudication proceedings 10 years, 15 years or 20 years
after the original show-cause notice was issued, which could not be
permitted. The position would have been different had there been
any default on the part of the petitioner which contributed to the long
delay. In such a case, petitioner would not be permitted to take
advantage of his own wrong but that was not even the case of the
Department.
20. The above view of this court has been consistently followed in
subsequent cases. In Sanghavi Reconditioners P. Ltd. v. Union of
India [2018] 12 GSTL 290 (Bom), a Division Bench of this court
examined a challenge to such delayed adjudication. In that case
show-cause notice was issued on March 28, 2002 and after more
than 15 years, notice of hearing was issued on September 7, 2017.
On behalf of the respondents it was contended that the show-cause
notice was kept dormant in a call book because of related litigation
in the Supreme Court. Ultimately, after the litigation was over, the
show-cause notice was retrieved from the call book and notice of
personal hearing was issued. It was further contended that this was a
procedural aspect and should not be a ground for setting aside
adjudication proceedings. In the above backdrop this court held as
follows :
“15. With the assistance of Mr. Raichandani and Mr. Jetly,
we have perused the petition and the annexures thereto. We
have also perused the consistent view taken by this court,
based on which the judgment in the case of Lanvin
Synthetics P. Ltd. (2015) 322 ELT 429 (Bom) was rendered.
The obligation on the respondents to adjudicate the show-
cause notices with expediency has been repeatedly
emphasized. The decisions in the cases of Shirish
Harshavadan Shah v. Deputy Director, E. D. (2010) 254
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ELT 259 (Bom) and Cambata Indus. P. Ltd. v. Additional
Dir. of Enforcement (2010) 254 ELT 269 (Bom) underline
as to how show-cause notices issued decades back cannot
be allowed to be adjudicated by the Revenue merely
because there is no period of limitation prescribed in the
statute to complete such proceedings. The adjudication
proceedings serve a definite purpose. The object is to secure
and recover public revenue. The larger public interest
therefore requires that the Revenue and its officials
adjudicate the show-cause notices expeditiously and within
a reasonable time. The term “reasonable time” is flexible
enough and would depend upon the facts and circumstances
of each case. There is no rigidity or inflexibility, in the
sense, a time is prescribed in the judgments of this court and
that is termed as reasonable. Thus, what would be a
reasonable time depends upon the facts and circumstances
of each case. Surely, a period of 13 years as was found in
the case of Shirish Harshavadan Shah (supra) and equally
long period in the case of Cambata Indus. P. Ltd. (supra)
was not termed as reasonable. This court, relying upon the
judgment of the hon’ble Supreme Court in the case of
Government of India v. Citedal Fine Pharmaceuticals
reported in AIR 1989 SC 1771, held that in absence of any
period of limitation, it is settled law that every authority
should exercise the power within a reasonable period. What
would be the reasonable period would depend upon the
facts of each case and no hard and fast rule can be laid
down in this behalf.
In the case of Lanvin Synthetics P. Ltd. (2015) 322 ELT 429
(Bom) as well, the period of 17 long years was found to be
entirely unreasonable.Concededly in the present case, the
show-cause notice was issued on March 28, 2002. The
petitioners forwarded their reply to the show-cause notice
after receipt thereof on September 14, 2002. Concededly,
there was a hearing in the year, 2004.
17. The first affidavit-in-reply filed in this petition by the
Assistant Commissioner of Customs does not dispute this
factual position at all. All that it tries to impress upon the
Court is the seriousness of the allegations and prays for an
opportunity to adjudicate the issue even now. The affidavit
emphasizes that the petitioner has voluntarily deposited a
sum of Rs. 3,33,37,598.92. That was duty liability
calculated in the year 1999 and much before the issuance of
the show- cause notice. It may be that the amount was not
received in full and final settlement of the Department’s
demand. However, there was an equal obligation, once the
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show-cause notice was issued on March 28, 2002, to have
adjudicated it expeditiously. The reasons assigned from
paragraph 14 onwards would indicate that there were
personal hearings in relation to all the notices.There may be
voluminous records and there may be number of persons
who have allegedly violated the provisions of law.However,
the affidavit proceeds to state that there was a personal
hearing held on March 25, 2004. A written brief was
submitted by the petitioners and they relied upon the order
of the Customs, Excise and Service Tax Appellate Tribunal
in the case of A. S. Moloobhoy and Sons (supra). However,
the Revenue found that there were adjournments sought but
in the meanwhile, the Department/Revenue challenged the
judgment of the Customs, Excise and Service Tax Appellate
Tribunal in the case of A. S. Moloobhoy and Sons (2003)
162 ELT 196 (Bom) in the Supreme Court of India.
Thereupon, all the matters were sent in the dormant list/call
book. It may be a procedural aspect for the
Department/Revenue. Unless and until the Revenue
establishes that there is a law mandating taking cognizance
of these procedural requirements or these procedural
requirements have been engrafted into the applicable
legislation so as to enable the Revenue/Department to seek
extension of time, in writ jurisdiction, we are not obliged to
take notice of these procedural delays at the end of the
Revenue/Department. Accepting that case would defeat the
rule of law itself. That would also result into taking
cognizance of extraneous matters and basing our conclusion
thereupon would then mean violating the principles laid
down in the binding judgments of this court and the hon’ble
Supreme Court. That the matters of present nature have to
be concluded expeditiously and within a reasonable time.
We do not therefore find the explanation from paragraphs
14 to 18 of this affidavit to be enough for granting the
Revenue an opportunity to now adjudicate the subject show-
cause notice. We have not found from any of these
averments and statements in the affidavit that there was a
bar or embargo, much less in law for adjudicating the show-
cause notice. This court indulged the Revenue enough and
by giving them an opportunity to file an additional affidavit.
The additional affidavit as well, does not indicate as to why
the Revenue took all these years, and after conclusion of the
personal hearing in the year 2004, to pass the final order.
Now allowing the Revenue to pass orders on the subject
show- cause notice would mean we ignore the principle of
law referred above. Secondly, we also omit totally from our
consideration the complaint of the petitioner that in a matter
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as old as of 1999, if now the adjudication has to be held, it
will be impossible for them to trace out all the records and
equally, contact those officials who may not be in their
service any longer. Thus, they would have no opportunity,
much less reasonable and fair, to defend the proceedings.
That is equally a balancing factor in the facts and
circumstances of the present case.
18. In the light of the above discussion, we are of the firm
opinion that in so far as the petitioner before us is
concerned, the Revenue/ Department has not been able to
justify its lapse in not adjudicating the show-cause notice
issued on March 28, 2002 for more than 15 years. There
may be reasons enough for the Revenue to retain some
matters like this in the call book, but those reasons do not
find any support in law in so far as the present petitioner’s
case is concerned. Merely because there are number of such
cases in the call book does not mean that we should not
grant any relief to the petitioner before us.”
21. Firstly, this court held that a show-cause notice issued a decade
back should not be allowed to be adjudicated upon by the Revenue
merely because there is no period of limitation prescribed in the
statute to complete such proceedings. Larger public interest requires
that the Revenue should adjudicate the show-cause notice
expeditiously and within a reasonable period. What would be the
reasonable period would depend upon the facts and circumstances of
each case but certainly a period of 13 years cannot be termed as a
reasonable period. Secondly, regarding keeping the show-cause
notice in the dormant list or the call book, this court held that such a
plea cannot be allowed or condoned by the writ court to justify
inordinate delay at the hands of the Revenue. To accept such a
contention would defeat the rule of law itself. Taking cognizance of
such an aspect would amount to giving credence to extraneous
matters. In any case such a procedure internally adopted by the
respondents is not binding on the court.
22. This position has been reiterated by this court in Raymond Ltd. v.
Union of India (2019) 368 ELT 481 (Bom). That was a case where
show-cause notices were issued during the period 2001 to 2004.
Adjudication proceedings were sought to be commenced after 14 to
17 years. Again the show- cause notices were kept in dormant
list/call book, awaiting final decision in Central Excise receipts audit
(CERA) audit objection. This court after referring to various judicial
pronouncements took the view that the weight of judicial
pronouncements leaned in favour of quashing the proceedings, if
there had been an undue delay in deciding the same. In the absence
of any period of limitation it is incumbent upon every authority to
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exercise the power of adjudication post issuance of show-cause
notice within a reasonable period. This court referred to the earlier
decision in Sanghavi Reconditioners P. Ltd. (supra) and held that
when the Revenue keeps the show-cause notice in call book then it
should inform the parties about the same. It serves two purposes–
(1) it puts the party to notice that the show- cause notice is still alive
and is only kept in abeyance. This would enable the party concerned
to safeguard the evidence till the show-cause notice is taken up for
adjudication ; and (2) if the notices are kept in call book, the parties
gets an opportunity to point out to the Revenue that the reasons for
keeping it in call book are not correct and that the notices should be
adjudicated promptly. Thus, informing the parties about keeping the
show- cause notice in call book would advance the cause of
transparency in revenue administration. It was held as under :
“9. In the present facts, it is the case of the petitioner that
because of long delay, papers and proceedings relevant to
meet the show- cause notice are not available. Thus,
seriously hampering the petitioners to appropriately meet
the show-cause notice. This delay in taking up the
adjudication of the show-cause notice (in the absence of any
fault on the part of the party complaining) is a facet of
breach of principles of natural justice. It impinges on
procedural fairness, in the absence of the party being put to
notice that the show-cause
notices will be taken up for consideration, after some event
and/or time, when it is not heard in a reasonable time. In the
absence of the above, particularly as in this case, long delay
has resulted in papers being misplaced. The reasonable
period may vary for case to case. However, when the
notices are being kept in abeyance (by keeping them in the
call book as in this case), the Revenue should keep the
parties informed of the same. This serves twofold purposes-
one it puts the party to notice that the show-cause notice is
still alive and is only kept in abeyance. Therefore, the party
can then safeguard its evidence, till the show-cause notice is
taken up for adjudication. Secondly, if the notices are being
kept in the call book for some reason, the party gets an
opportunity to point to the Revenue that the reasons for
keeping it in call book are not correct and the notices could
be adjudicated upon immediately. This is the transparent
manner in which the State administration must function.
10. In fact, we note that the above manner of functioning is
the objective of the State administration, as our attention has
been drawn to the C. B. E. and C. Circular No. 1053/2017-
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circular of the C. B. E. and C. has directed the officers of
the Department to formally communicate to the party that
the notices which have been issued to them, are being
transferred to the call book. This would be expected of the
State even in the absence of the above circular ; the circular
only states the obvious. In this case, the show-cause notices
were kept in the call book not at the instance of petitioner,
but by the Revenue of its own accord. After having kept it
in the call book, no intimation/communication was sent by
the Commissioner pointing out that the show- cause notices
had been kept in the call book. Thus, bringing it to the
notice of the petitioners that the show-cause notices are still
alive and would be subject to adjudication after the show-
cause notices are retrieved from the call book on the dispute
which led to keeping it in the call book being resolved.
This, admittedly has not been done by the Revenue in this
case.””
42. The Bombay High Court after noticing the various judgments
which had explained and laid emphasis upon adjudication proceedings
being liable to be concluded within a reasonable period, observed that
undue delay would be sufficient to annul the entire adjudication itself.
Since the respondents there had failed to provide any explanation for
the adjudication proceedings having remained pending for almost 13
years and the delay not being attributable to any action of the writ
petitioner, the Court ultimately held as follows:
“23. In the present case, it is evident that the delay in adjudication of
the show-cause notices could not be attributed to the petitioner. The
delay occurred at the hands of the respondents. For the reasons
mentioned, respondents have kept the show-cause notices in the call
book but without informing the petitioner. Upon thorough
consideration of the matter, we are of the view that such delayed
adjudication of more than a decade defeats the very purpose of
issuing show-cause notice. When a show-cause notice is issued to a
party, it is expected that the same would be taken to its logical
consequence within a reasonable period so that a finality is reached.
A period of 13 years as in the present case certainly cannot be
construed to be a reasonable period. The petitioner cannot be faulted
for taking the view that respondents had decided not to proceed with
the show-cause notices. An assessee or a dealer or a taxable person
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must know where it stands after issuance of show-cause notice and
submission of reply. If for more than 10 years thereafter there is no
response from the Departmental authorities, it cannot be faulted for
taking the view that its reply had been accepted and the authorities
have given a quietus to the matter. As has been rightly held by this
court in Raymond Limited (supra), such delayed adjudication wholly
attributable to the Revenue would be in contravention of procedural
fairness and thus violative of the principles of natural justice. An
action which is unfair and in violation of the principles of natural
justice cannot be sustained. Sudden resurrection of the show-cause
notices after 13 years, therefore, cannot be justified.
24. There is one more aspect which we would like to point out. The
respondents had not taken any action pursuant to the show-cause
notices for long 13 years till issuance of notice for personal hearing
on August 13, 2019. After the petitioner approached this court by
filing the present writ petition on September 6, 2019 with due
intimation to the respondents, respondent No. 3 went ahead and
passed the order-in-original dated November 11, 2019. We fail to
understand when the respondents could wait for 13 long years after
issuance of the show-cause notices, there could not have been any
earthly reason to proceed at such great speed and pass the order-in-
original before the court could adjudicate on the correctness of the
action of the respondents. Is it open to the respondents to materially
alter the subject matter of the writ petition pending before the court
and then contend that because of such material alteration, the writ
petition has become infructuous and that the petitioner should avail
the alternative remedy of appeal ?”
43. In Nanu Ram Goyal vs. CCE (GST) 20, a Division Bench of our
Court was called upon to examine an identical challenge. The case
pertained to proceedings initiated under the 1994 Act and was thus
rendered in the backdrop of Section 73(4B) and which undisputedly
obliges the competent authority to complete the determination process
within one year from the date of issuance of notice, “where it is
possible to do so”. Notwithstanding the permissive interpretation that
was canvassed on behalf of the respondents in light of the statutory
provision adopting the aforenoted phraseology, our Court held that even
where the statute fails to provide or stipulate a particular period, it
20
2023 SCC OnLine Del 2188; Nanu Ram Goyal I
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would be the principles of reasonable time which would apply. This
becomes evident from a reading of the following passages of that
decision:
“19. It is settled law that where there is no period stipulated for
exercising jurisdiction, the same must be done within a reasonable
period. In Union of India v. Citedal Fine Pharmaceuticals [Union of
India v. Citedal Fine Pharmaceuticals, (1989) 3 SCC 483 : 1989
SCC (Tax) 464] , the Supreme Court had observed as under: (SCC p.
487, para 6)“6. Learned counsel appearing for the respondents urged
that Rule 12 is unreasonable and violative of Article 14 of
the Constitution, as it does not provide for any period of
limitation for the recovery of duty. He urged that in the
absence of any prescribed period for recovery of the duty as
contemplated by Rule 12, the officer may act arbitrarily in
recovering the amount after lapse of long period of time. We
find no substance in the submission. While it is true that
Rule 12 does not prescribe any period within which
recovery of any duty as contemplated by the rule is to be
made, but that by itself does not render the rule
unreasonable or violative of Article 14 of the Constitution.
In the absence of any period of limitation it is settled that
every authority is to exercise the power within a reasonable
period. What would be reasonable period, would depend
upon the facts of each case. Whenever a question regarding
the inordinate delay in issuance of notice of demand is
raised, it would be open to the assessee to contend that it is
bad on the ground of delay and it will be for the relevant
officer to consider the question whether in the facts and
circumstances of the case notice or demand for recovery
was made within reasonable period. No hard and fast rules
can be laid down in this regard as the determination of the
question will depend upon the facts of each case.”
20. In a later decision in State of Punjab v. Bhatinda District Coop.
Milk Producers Union Ltd. [State of Punjab v. Bhatinda District
Coop. Milk Producers Union Ltd., (2007) 11 SCC 363] , the
Supreme Court had reiterated the aforesaid principle in the following
words: (SCC p. 367, para 18)
“18. It is trite that if no period of limitation has been
prescribed, statutory authority must exercise its jurisdiction
within a reasonable period. What, however, shall be the
reasonable period would depend upon the nature of the
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statute, rights and liabilities thereunder and other relevant
factors.”
21. As noted above, Section 73 of the Act, as in force at the material
time, did not stipulate any period within which the show-cause
notice was required to be adjudicated. It merely stipulated the period
within which the show-cause notice was required to be issued.
However, there is no cavil that the authority conferred with the
jurisdiction is required to exercise the same within a reasonable
period. The learned counsel for the respondents did not controvert
the aforesaid principle; he contended that the question as to what is a
reasonable period is required to be ascertained with reference to the
facts in a given case. And, in the present case, the reasonable period
was required to be determined considering the “call book”
procedure. Respondent 1 had resumed the proceedings immediately
after finding that the matter was no longer required to be kept in
abeyance (in th, “call book”).”
44. The aspect of matters being placed in the call book also appears
to have arisen for notice of the Court. While dealing with the procedure
as adopted by the respondents of placing matters repeatedly in the call
book, the Court in Nanu Ram Goyal I observed as follows:
“22. The respondents state that Respondent 1 had placed the matter
in th, “call book” in terms of the CBEC Circular dated 26-5-2003
(Circular No. 719-35-2003-CX). The aforementioned circular
indicates that it had reiterated the instructions issued in the earlier
Circular No. 53 of 1990-CX, dated 6-9-1990 and Circular No. 162-
73-1995-CX, dated 14-12-1995; furthermore, directing that the Chief
Commissioner should monitor the progress of disposal of the “call
book” cases to ascertain whether the “call book” cases have been
reviewed by the Commissioner of Central Excise; whether any
appreciable progress has been noticed; and there are any avoidable
delays.
23. CBEC had issued Circular No. 53 of 1990-CX, dated 6-9-1990
stating that “if a current case has reached a stage where no action can
or need be taken to expedite its disposal for at least 6 months (e.g.
cases held up in law courts), it may be transferred to the call book
with the approval of the competent authority”. The Circular No. 162-
73-1995-CX, dated 14-12-1995, also noted that the Commissioner of
Customs and Central Excise, Delhi had requested for inclusion of
certain other categories of cases that could be placed under the said
“call book”, namely, “(i) Cases in which the Department has gone in
appeal to the appropriate authority; (ii) Cases where injunction has
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been issued by the Supreme Court/High Court/CEGAT, etc; (iii)
Cases where audit objections are contested; and (iv) Cases where the
Board has specifically ordered the same to be kept pending and to be
entered into the call book”.
24. According to the respondents, the procedure of placing a case in
the “call book” is well accepted. In the present case, Respondent 1
had done so, as the issue involved in the impugned show-cause
notice was pending consideration before the Supreme Court in CCE
& Service Tax v. Sobha Developers Ltd. [CCE & Service
Tax v. Sobha Developers Ltd. Civil Appeal Nos. 9819-9820 of 2010,
decided on 17-1-2017] , which was decided on 17-1-2017.
25. The question whether the procedure of placing matters in the
“call book” is permissible is a contentious one. The Gujarat High
Court in Siddhi Vinayak Syntex (P) Ltd. v. Union of India [Siddhi
Vinayak Syntex (P) Ltd. v. Union of India, 2017 SCC OnLine Guj
2609] had observed as under: (SCC OnLine Guj para 35)
“35. … In the opinion of this Court, instructions to consign
a case to the call book are relatable to the adjudicatory
process, and do not provide for any incidental or
supplemental matters, consistent with the Act or the rules.
Neither the Act nor the Rules, in any manner empower the
CBE and C to issue instructions to any adjudicatory
authority in relation to matters pending for adjudication
before it.”
26. The Gujarat High Court further observed that the concept of th,
“call book” neither relates to uniformity in the classification of
excisable goods nor to the levy of duties of excise on such goods,
which were matters in respect of which the CBEC was empowered
to issue circulars under Section 37-B of the Excise Act, 1944. Thus,
the concept of the “call book” could not be traced to Section 37-B of
the Excise Act, 1944 or any other provisions of the said Act. The
Gujarat High Court reiterated the aforesaid view in Shree
Shakambari Silk Mills v. Union of India [Shree Shakambari Silk
Mills v. Union of India, 2017 SCC OnLine Guj 2496] .
27. This court is informed that the question as to the validity of the
“call book” procedure is pending consideration before the Supreme
Court in a batch of matters. It is stated that the Revenue had
preferred an appeal against the decision of the Gujarat High Court
in Siddhi Vinayak Syntex (P) Ltd. case [Siddhi Vinayak Syntex (P)
Ltd. v. Union of India, 2017 SCC OnLine Guj 2609] , however, the
said appeal was disposed of by an order dated 18-2-2022 in Union of
India v. Siddhi Vinayak Syntex (P) Ltd. [Union of India v. Siddhi
Vinayak Syntex (P) Ltd., 2022 SCC OnLine SC 1818] on account of
the low tax effect albeit with a clarification that if the assessee chose
to raise any grounds regarding the “call book” regime, the assessee
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would have to await the outcome of the proceedings pending in the
Supreme Court.”
45. The Court, ultimately and on facts, while desisting from
rendering any opinion on the validity of the procedure of placing
matters in the call book, held that in light of the gross delay, the order
of adjudication would not sustain. It thus proceeded to hold as follows:
“36. In ATA Freight Line (I) (P) Ltd. v. Union of India [ATA Freight
Line (I) (P) Ltd. v. Union of India, (2023) 25 GSTR-OL 181 : 2022
SCC OnLine Bom 648] , the Bombay High Court in somewhat
similar circumstances where the show-cause notice had been kept in
abeyance for more than seven to eleven years allowed the petition.
The Bombay High Court also noticed that if the petitioner was
informed about the show-cause notice being kept in the “call book”,
the petitioner would have applied for an appropriate relief by filing
for appropriate proceedings. It was not expected for the assessee to
preserve evidence and records for a long period of time. It is material
to note that the Revenue had filed a special leave petition in Union of
India v. ATA Freight Line (I) (P) Ltd. [Union of India v. ATA Freight
Line (I) (P) Ltd. SLP(C) No. 003240 of 2023, dt. 10-2-2023] before
the Supreme Court, which was dismissed by an order dated 10-2-
2023. The said order reads as under:
“Delay condoned.
Having heard learned counsel for the parties at length, we
do not find any good ground to interfere with the impugned
judgment and order passed by the High Court. Accordingly,
the special leave petition is dismissed.
Pending application(s), if any, stand disposed of.”
37. It is apparent from the above that the Supreme Court had
considered the matter but had found no grounds to interfere with the
judgment of the Bombay High Court.
38. In view of the above, we conclude that the proceedings pursuant
to the impugned show-cause notice are inordinately delayed and it is
now impermissible for the respondents to continue the same. The
respondents are, accordingly, interdicted from taking any action or
continuing any proceedings pursuant to the impugned show-cause
notice.”
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46. A review petition in Nanu Ram Goyal vs. CCE (GST) & Ors.21
which came to be filed by the respondents also came to be dismissed.
We deem it appropriate to extract the order passed on the aforenoted
review petition since the order of the Supreme Court in Commissioner,
GST And Central Excise Commissionerate II, & Ors. vs. M/s Swati
Menthol and Allied Chemicals Ltd & Anr. 22, and which was pressed
into aid before us in these proceedings, appears to have been cited for
the consideration of the Court. The Court, however, pertinently
observed that Swati Menthol turned on its own peculiar facts and thus
would not detract from the correctness of the view which had been
expressed in the original judgment. The review petition came to be
dismissed in the following terms:
“1. Respondent no.1/ review petitioner (hereafter Revenue) has
filed the present review petition seeking review of the judgment
dated 18.04.2023 passed by this Court.
2. Mr. R. Ramachandran, learned counsel appearing for the
Revenue has referred to the decision of the Supreme Court in
Commissioner, GST and Central Excise Commissionerate II &
Ors. v. M/s Swati Menthol & Allied Chemicals Ltd. & Anr., SLP(C)
No. 20072 of 2021 dated 10 July, 2023, wherein the Supreme Court
had accepted the Revenue’s contention that the matters be remitted
to the Adjudicating Authority (Commissioner of GST) to conclude
the proceedings within a period of eight weeks.
3. Ms. Kavita Jha, learned counsel appearing for the petitioner
submits that the order in Commissioner, GST and Central Excise
Commissionerate II & Ors. v. M/s Swati Menthol & Allied
Chemicals Ltd. & Anr. (supra) was passed in the given facts of that
case. She submits that in that case, the Court had noted the
submission that, the assessee had despite notices not appeared before
the concerned officer, which is not so in the present case. She further
submits that the Supreme Court has not decided the question as
considered by this Court in the judgment under review and had
issued directions in the facts of that case keeping all contentions of
21
Review Petition No. 330/2023 dated 16 February 2024; Nanu Ram Goyal II
22
SLP (C) No. 20072/2021 dated 10 July 2023
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the parties open. She also points out that this Court had in its order
dated 18.04.2023 also considered the decision of the Bombay High
Court in ATA Freight Line (I) Pvt. Ltd. v. Union of India &
Ors.:2022 SCC OnLine Bom 648 and a Special Leave Petition
against the said decision was dismissed by the Supreme Court.
4. The order dated 10.02.2023 passed by the Supreme Court in
Special Leave Petition (Civil) Diary No.828/2023 captioned Union
of India & Ors. v. ATA Freight Line (I) Pvt. Ltd. indicates that prior
to the dismissal of the Special Leave Petition, the Court had heard
the counsels for the parties at length and found that there was no
ground to interfere with the said decision.
5. The decision rendered by the Hon’ble Supreme Court in
Commissioner, GST and Central Excise Commissionerate II &
Ors. v. M/s Swati Menthol & Allied Chemicals Ltd. & Anr. (supra)
was rendered in the facts of that case as the court considered it
apposite to relegate the matter to the Adjudicating Authority.
6. We find no ground to review the judgment under review.
Moreover, it is also seen that the present review petition has been
filed after 154 days delay. The learned counsel for the revenue states
that the due process for approval / permission for filing the review
petition, from the hierarchy of the departmental authorities was
followed and the same resulted in the aforesaid delay. It is contended
that the delay in filing the present review petition is on account of
the administrative reasons. We are unable to accept that the Revenue
was prevented by sufficient cause from filing the present review
petition within the stipulated period.
7. In view of the above, the review petition is dismissed both on
the grounds of delay and on merits.”
47. A detailed decision with respect to the imperatives of
adjudication being concluded with due expedition and the validity of
the call book procedure arose for consideration of the High Court of
Jharkhand in Tata Steel Limited vs. Union of India & Ors. 23 The
Jharkhand High Court too was dealing with a batch of writ petitions
which had questioned the continuance of adjudication proceedings
decades after the original SCNs’ had been issued. It appears that the
23
W.P.(T) 826/2023 dated 13 June 2023
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validity of placement of matters in the call book was considered in
extenso in another writ petition and the order passed thereon having
been duly considered by the Division Bench in Tata Steel. This
becomes evident from a reading of paragraph 13 of the judgment, and
which is extracted hereinbelow:
“13. Having heard learned counsel for the parties and after going
through the documents available on record and the averments made
in the respective affidavits and also the order passed by this Court in
W.P.(T) No.308 of 2023, it appears that the issue involved in these
cases is squarely covered. For brevity relevant portion of the
judgment passed in W.P.(T) No.308 of 2023 is quoted hereinbelow:-
“17. We have given anxious consideration to the submission
of learned counsel for the parties, taken note of the relevant
material facts pleaded and borne from the records and also
the CBIC circulars cited by the parties and the decisions
relied upon by learned counsel for the petitioner.
18. The facts as borne out from the pleadings on record
need no repetition. The impugned show cause is of 9 th
December 1993 (Annexure-5) issued upon the petitioner
asking them to show cause as to why the appropriate excise
duty amounting to Rs. 1,67,42,847.30 be not imposed upon
him under the provisions of Rules 9(B), 52A, 173(B), 173(F)
and 173(G) of Central Excise Rules, 1944 and Section 11A
of the CEA, 1944 alleging less payment of duty due to
misclassification. The respondents had kept the impugned
show cause notice and ten other SCNs as indicated in the
chart above in the call book on the ground that the matter
was subjudice. However, from the pleadings on record and
also from the averments made in the counter affidavit, it
appears that none of the conditions as enumerated in the
CBIC circular / guidelines relied upon by the respondents
and also by the petitioner stood satisfied for transferring the
matter to the call book. It is not a case where the
department had gone in appeal before the learned CEGAT
or before the Apex Court, rather it was the petitioner who
twice went up to the Apex Court in Civil Appeal No. 782 of
1987 against the first SCN dated 8 th February 1984 and in
Civil Appeal No. 3973 of 2001 against the SCN dated 13th
August 1990. The instant SCN pertains to the period June
1993 to November 1993 and is of 9th December 1993.
Learned counsel for the 11 respondents has fallen back on
Clause 2 of the condition stipulated in the CBIC circular as
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referred to in para 11 of their counter affidavit but he has
not been able to show that at any point of time there was a
stay in proceeding upon the impugned show cause notice by
either the CEGAT or the High Court or the Hon’ble Apex
Court. Even if by stretching the argument to the extent that
the show cause notice dated 13th August 1990 was
subjudice before the Apex Court in Civil Appeal No. 3973 of
2001, there is no basis or explanation on the part of the
respondents to have kept the show cause notice in its call
book without proceeding for its adjudication after the
judgment rendered in that case by the Apex Court on 5th
May 2004. None of the other two conditions as indicated by
the respondents at Clause 3 and 4 quoted above also stand
satisfied in the present case. The respondents have not
enclosed any document to show that prior approval of the
Collector of excise was taken before keeping the case in the
call book. There seems to be no reference of any periodic
review of the call book, though the relevant CBIC circulars
such as the circular dated 30th March 1998 and 20th May
2003 specifically required the Commissioners to review the
cases transferred to call books on a monthly basis in
circumstances where the department was confronted with a
situation where provisional assessment cases were kept
pending for several years. The extract of the relevant
circulars are quoted here under :-
In circular dated 30th March 1998 :
“While the Board had issued instructions to
Commissioners to review the cases transferred to
call books on a monthly basis, it is observed that no
such review is actually being done. (Board’s DO
Letter F.No.101/2/92-CX.3, dated 4th March 1992
and Board’s Circular No.53/90-CX.3, dated
6.9.1990). 2. The Board vide its < > specified the
following categories of cases which can be
transferred to call book viz.:
1. Cases in which the Department has gone in
appeal to the appropriate authority.
2. Cases where injection has been issued by
Supreme Court/High Court/CEGAT, etc.
3. Cases where audit objections are contested. 4.
Cases where the Board has specifically ordered the
same to be kept pending and to be entered into the
call book.”
In circular dated 28th May 2003 :
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“3. It is further directed that a one-time
comprehensive review of all the pending call book
cases will be done by respective CCEs. The Chief
Commissioner may monitor such review periodically
in their respective zones. The progress report of the
call book cases should continue to mention in the
MTR as well as in the monthly statements of the
progress achieved in “Key Result Areas”.
In circular dated 10th March 2017 :
“9.4 Intimation of Call Book cases to notice: A
formal communication should be issued to the
notice, where the case has been transferred to the
call book.”
19. In this regard, it is pertinent to refer to the provisions of
Section 11A of the CEA which reads as under :-
SECTION 11A OF THE CENTRAL EXCISE ACT,
1944 “SECTION 11A- Recovery of duties not levied
or not paid or short-levied or short-paid or
erroneously refunded. – (1) Where any duty of excise
has not been levied or paid or has been short-levied
or short-paid or erroneously refunded, for any
reason, other than the reason of fraud or collusion
or any willful misstatement or suppression of facts
or contravention of any of the provisions of this Act
or of the rules made thereunder with intent to evade
payment of duty,-
xxx xxx xxx
(4) Where any duty of excise has not been levied or
paid or has been short-levied or short- paid or
erroneously refunded by reason of –
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Act
or of the rules made thereunder with intent to evade
payment of duty. by any person chargeable with the
duty, the Central Excise Officer shall, within five
years from the relevant date, serve notice on such
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interest payable thereon under section 11AA and a
penalty equivalent to the duty specified in the notice.
(5) Where, during the course of any audit,
investigation or verification, it is found that any duty
[has not been levied or paid or has been] short –
levied or short – paid or erroneously refunded for the
reason mentioned in clause (a) or clause (b) or
clause (c) or clause (d) or clause (e) of sub-clause
(4) but the details relating to the transactions are
available in the specified records, then in such cases,
the Central Excise Officer shall within a period of
five years from the relevant date, serve a notice on
the person chargeable with the duty requiring him to
show cause why he should not pay the amount
specified in the notice along with interest under
section 11AA and penalty equivalent to fifty per cent
of such duty.
xxx xxx xxx
(11) The Central Excise Officer shall determine the
amount of duty of excise under sub-section (10) –
(a) within six months from the date of notice where it
is possible to do so, in respect of cases falling under
sub-section (1);
(b) within two year [substituted for one year w.e.f.
14-05-2016] from the date of notice, where it is
possible to do so, in respect of cases falling under
the proviso to sub-section (4) or subsection (5)].
xxx xxx xxx
20. The issue at hand has crossed the attention of the
various jurisdictional High Courts such as the Bombay
High Court and the Punjab and Haryana High Court of
which the judgments rendered in the cases of Eastern
Agencies Aromatics Private Limited Vs. Union of India &
Ors,. para-14 to 17 and Harkaran Dass Vedpal Vs. Union of
India, para-3, 9 and 11 to 15 have been specifically relied
upon by the petitioner.
21. Petitioner has also relied upon the recent judgment of
the Apex Court, in Special Leave to Appeal (Civil) No.
12376 of 2022 dated 29th July 2022 arising out from a
judgment of Punjab and Haryana High Court wherein the
show cause notice remain unadjudicated for 11 years. In the
peculiar facts and circumstances of the case the Apex Court
refused to interfere in the matter and the special leave
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petition was dismissed. The decision in the case of Eastern
Agencies Aromatics Private Limited (Supra) relates to the
delay of nine years in adjudication of a show cause notice
under Section 28 of the Customs Act, 1962 which also
contains a similar provision “if it is possible to do so”. The
opinion of the learned Bombay High Court at para 14 to 17
are quoted hereunder for easy reference:
14. Perusal of the show cause notice shows that the
breach alleged for initiating action for demanding
the forgone import duty was on the ground of
irregular exports by the exporters and breach of the
provisions committed by the exporters. It is not in
dispute that the Petitioner had promptly replied the
show cause notice well within time in the year 2014
itself. It is further not in dispute that the Petitioner
was never intimated in respect of any adjudication of
the show cause notice and/or any decision of
keeping the adjudication pending. Thus, the
Petitioner is justified in submitting that the
Petitioner was under bonafide belief that the
Respondents were not interested in adjudicating the
show cause notice and that the same was dropped.
Though the Respondent Nos. 1 and 2 have sought to
justify their action to revive the show cause notice
after a period of 9 years, the contentions raised by
the Respondent Nos. 1 and 2 are unreasonable and
not supported by any statutory provisions. 15. We
have perused the consistent view taken by this Court,
that the concerned Authority is under an obligation
to adjudicate upon the show cause with expediency.
In our view, unreasonable and unjustified delay in
adjudication of the show cause notice is in
contravention of procedural fairness and is violative
of principles of natural justice.
16. We find sufficient merit in the submissions made
on behalf of the Petitioner that delay in adjudication
of the show cause notice constitutes breach of
principle of natural justice. In the present case, show
cause notice issued in the year 2013 was replied by
the Petitioner well within time in the year 2014
itself. The Petitioner 14 has specifically pleaded that
the previous Director of the Petitioner, who was
looking after the day to day management including
the import of goods expired on 19th May 2019 and
that no other person was aware about the
proceedings of the show cause notice. There is no
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dispute that the Petitioner was never intimated with
respect to adjudication on the show cause notice or
the same being kept in the call book. Learned
counsel for the Petitioner is right in contending that
the Petitioner is gravely prejudiced as the
Respondents never informed the Petitioner about the
show cause notice being kept in the call book and
that due to passage of time the relevant papers may
not be available and it will not be possible to defend
the show cause notice. Petitioner is also right in
contending that even otherwise pendency of
proceedings was not in respect of the Petitioner.
Hence it is obvious that revival of show cause notice
will seriously prejudice the Petitioner.
17. In the present case, reasons given by the
Respondents for the delay caused in seeking to
revive the show cause notice do not constitute any
reasonable ground and the delay caused is not
sustainable, as the same is in breach of the
principles of natural justice. Though in Affidavit-In-
Reply it is sought to be contented that the period of
limitation prescribed by the amending Act, 2018 is
not applicable to the present show cause notice of
the year 2013, nothing was argued before us in
support of this contention. In our view, even
otherwise the powers of such nature of adjudicating
the show cause notice are required to be exercised
within reasonable time. We do not find any
justification for the inaction on the part of the
Respondents for keeping the adjudication of the
show cause notice pending and for seeking revival of
the same after a period of 9 years. For the reasons
recorded above, the show cause notice impugned in
the Petition is required to be quashed and set aside
and it is also necessary to prohibit the Respondent
from adjudicating the show cause notice any
further.”
22. Similar is the view expressed by the Punjab and
Haryana High Court in the case of GPI Textiles Limited
Vrs. Union of India [2018 (362) ELT 388 (P&H)] where the
show cause notices issued under Section 11 A of the Central
Excise Act 1944 were kept pending for 16 years. The present
case is a gross one as the impugned show cause notice are
kept pending since 9 th December 1993 for 29 years and
even if some explanation on the part of the respondents
relating to pendency of Civil Appeal No. 3793 of 2001 till
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05.05.2004 is accepted, there is no justification for not
proceeding upon the impugned show cause notice for 18
years thereafter till the impugned notice of personal hearing
has been served upon the petitioner. Adjudication of such a
show cause notice after 29 years would be contrary to the
mandate of Section 11A(11) of the CEA 1944 and would
lead to unreasonable and arbitrary results. Such
proceedings therefore stands vitiated due to inordinate and
unreasonable delay and are accordingly fit to be quashed.
Accordingly, 15 the impugned show-cause notice dated 9 th
December 1993 is quashed. The notices of personal hearing
dated 30th November 2022 and 23rd December 2022 are
also quashed.
23. The writ petition is allowed in the manner and to the
extent indicated herein above. Pending interlocutory
application seeking stay is closed.”
48. Since the aspect of transferring matters to the call book appears
to have been reagitated, that High Court in Tata Steel after reviewing
various judgments rendered by different High Courts including the
decisions of our Court in Nanu Ram Goyal I & II held as follows:
“18. The respondents have also again tried to rake up the issue of
transfer of such notices (SCN) to call book, when such issue has
been authoritatively decided by this Court in W.P.(T) No.308 of
2023. The file notings brought on record by the respondent also does
not help them in any manner; rather, it only justifies the order passed
by this Court that there existed no circumstances for transfer of cases
to the call book as per the circulars issued by the department itself.
In this regard we observe that there is no justification/reasoning
either in the counter affidavit or the file notings as to why the show
cause notices were taken out of the call book only in November,
2022. There is nothing to indicate any change in circumstances
which led to taking out of the cases from the call book.
Apart from the other grounds, some semblance of
justification is sought to be given by the respondent in the counter
affidavit where they have stated that since the issue of classification
had been settled, accordingly it was decided to take the show cause
notices out from the call book. At multiple places in the impugned
order, it has been stated that the issue had attained a finality in 2004
itself.
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Regarding this stand, we hold that since the issue did attain
finality in 2004 itself, there was absolutely no justification in
keeping the show cause notices pending thereafter. The file notings
show that though the Commissioner was apprised in 2007 that the
issue had attained a finality, still a decision was taken by him on
26.10.2007 to keep the cases in the call book. Mere pendency of
another matter before the Tribunal when the issue had attained a
finality by the Hon’ble Apex Court, 28 cannot be a reason to keep
the SCN in the call book. A lapse of 18 years from 2004 to 2022
remains unexplained. Neither is there an explanation for any change
of circumstances for taking out the notices from the call book in
November 2022. In such circumstances, the SCN and the OIO
cannot be countenanced. Reference is made to a recent decision of
the Delhi High Court in the case of Nanu Ram Goyal v. Comm. of
CGST & CEX, WP(C) No. 13906 of 2022, order dated 18.4.2023 –
Paras 30, 32, and 33.
19. The Respondents have also sought to rely upon the decision
rendered in the case of Union of India v. Siddhi Vinayak Syntex
Pvt. Ltd., 2022 (379) ELT 553 (SC), to submit that the issue
regarding the validity of call book is pending before the Hon’ble
Supreme Court. However, as also stated in W.P.(T) No. 308 of 2023,
it is the categorical submission of the Petitioner company that it is
not questioning the correctness of the concept of Call Book. Rather it
is the Petitioner’s contention that none of the conditions stipulated
for transfer of notice of call book stood satisfied. Reliance is placed
on the judgment rendered by the Delhi High Court in Nanu Ram
Goyal (supra) – para 28 is quoted hereinbelow:-
28- In the facts of the present case it is not necessary for
this court to examine the validity of the procedure of placing
the matter in the ‘Call Book’ as it is apparent that there is a
gross delay on the part of respondent no. 1 and there are no
justified reasons for the same.
20. The Respondents have also stated that the Department has
decided to approach the Hon’ble Supreme Court against the
judgment dated 14.2.2023 rendered in W.P.(T) No. 308 of 2023. It is
however submitted by the learned ASGI that no such Special Leave
Petition has been filed as on date. Even otherwise, mere filing of any
Special Leave Petition does not amount to a stay of the order of the
High Court. The order of the High Court must be given effect to until
and unless the same is stayed by an order of the Hon’ble Supreme
Court. This is well settled by the judgment rendered in the case of
Kunhayammed v. State of Kerala, (2000) 6 SCC 359 – Paras 14(4)
and 28 are quoted hereinbelow:-
14 ….(4) In spite of a petition for special leave to appeal
having been filed, the judgment, decree or order against
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which leave to appeal has been sought for, continues to be
final, effective and binding as between the parties. Once
leave to appeal has been granted, the finality of the
judgment, decree or order appealed against is put in
jeopardy though it continues to be binding and effective
between the parties unless it is a nullity or unless the Court
may pass a specific order staying or suspending the
operation or execution of the judgment, decree or order
under challenge.
28. Incidentally we may notice two other decisions of this
Court which though not directly in point, the law laid down
wherein would be of some assistance to us. In Shankar
Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat
[(1969) 2 SCC 74 : AIR 1970 SC 1] this Court vide para 7
has emphasised three preconditions attracting applicability
of doctrine of merger. They are: (i) the jurisdiction exercised
should be appellate or revisional jurisdiction; (ii) the
jurisdiction should have been exercised after issue of
notice; and (iii) after a full hearing in presence of both the
parties. Then the appellate or revisional order would
replace the judgment of the lower court and constitute the
only final judgment. In Sushil Kumar Sen v. State of Bihar
[(1975) 1 SCC 774 : AIR 1975 SC 1185] the doctrine of
merger usually applicable to orders passed in exercise of
appellate or revisional jurisdiction was held to be
applicable also to orders passed in exercise of review
jurisdiction. This Court held that the effect of allowing an
application for review of a decree is to vacate a decree
passed. The decree that is subsequently passed on review
whether it modifies, reverses or confirms the decree
originally passed, is a new decree superseding the original
one. The distinction is clear. Entertaining an application for
review does not vacate the decree sought to be reviewed. It
is only when the application for review has been allowed
that the decree under review is vacated. Thereafter the
matter is heard afresh and the decree passed therein,
whatever be the nature of the new decree, would be a decree
superseding the earlier one. The principle or logic flowing
from the abovesaid decisions can usefully be utilised for
resolving the issue at hand. Mere pendency of an
application seeking leave to appeal does not put in jeopardy
the finality of the decree or order sought to be subjected to
exercise of appellate jurisdiction by the Supreme Court. It is
only if the application is allowed and leave to appeal
granted then the finality of the decree or order under
challenge is jeopardised as the pendency of appeal reopens
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the issues decided and this Court is then scrutinising the
correctness of the decision in exercise of its appellate
jurisdiction.
xxxx xxxx xxxx
23. Having regard to the aforesaid discussions and judicial
pronouncements and also the fact that the issue involved in these
writ applications has already been decided by this Court in W.P.(T)
No.308 of 2023, we are having no hesitation in quashing the
respective show cause notices (SCN) and Notice of personal hearing
as mentioned in paragraph No.3 in tabular form and subsequent OIO
i.e. common Order in Original dated 17.02.2023. The same are
hereby quashed and set aside.”
49. We then proceed to notice some judgments which have come to
be rendered by our High Court in recent times. The first of those
decisions which bear relevance to the issue which stands raised is in the
matter of Swatch Group India (P) Ltd. vs. Union of India 24. One of
the contentions which appears to have been urged for the consideration
of the Court therein was the validity of the SCN proceedings being
liable to be examined in the backdrop of the unamended Section 28 of
the Customs Act. The Court in Swatch Group pertinently observed as
under:
“24. From the above, it is, therefore, clear that, with effect from
March 29, 2018, it is mandatory for the proper officer to adjudicate
the show-cause notices that are issued after the amendment to
section 28(9) of the Customs Act within a period of six months or
one year of the date of issuance as the case maybe. The same can be
extended for a further period of one year by an officer senior in rank
to the proper officer, after considering the circumstances under
which the proper officer was prevented from passing an order within
the prescribed period.
25. It is significant to note that the provisions of section 28(9) of the
Customs Act were amended by the Finance Act, 2018 (Act No. 13 of
2018)). The same came into effect from March 29, 2018. The
amended and unamended provisions of section 28(9) of the Customs
Act have been referred above. Pursuant to the said amendment, the24
2023 SCC OnLine Del 4938
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words “where it is possible to do so” were deleted from section 28(9)
of the Customs Act and a proviso was inserted, which provided that
where a proper officer fails to determine the amount of duty within
the specified period any officer senior in the rank to that of the
proper officer may extend the period to a further period of six
months or one year as the case may be on being satisfied of the
existence of the circumstances under which the proper officer was
prevented from determining the duty within the specified period.
Sub-section (9A) was also inserted by the Finance Act, 2018.
26. It is also significant that an Explanation 4 was inserted by the
Finance Act, 2018, which clarified that the show-cause notices
issued prior to the date on which Finance Bill, 2018 receives the
ascent of the President shall continue to be governed by the
provisions of unamended section 28 of the Customs Act.
27. Explanation 4 as inserted vide the Finance Act, 2018 reads as
under:
“Explanation 4.–For the removal of doubts, it is hereby
declared that in cases where notice has been issued for non-
levy, not paid, short-levy or short-paid or erroneous refund
after the 14th day of May, 2015, but before the date on
which the Finance Bill, 2018 receives the assent of the
President, they shall continue to be governed by the
provisions of section 28 as it stood immediately before the
date on which such assent is received.”
28. The learned counsel for the petitioner has vehemently contended
that the amendment carried out in section 28 of the Customs Act is
only procedural and applying the principles of retroactive
amendment, the respondent was bound to pass an order within 12
months of coming into force the amendment to section 28(9) of the
Customs Act. He relied upon the judgment passed by the honourable
High Court of Punjab and Haryana in the case of Harkaran Dass
Vedpal v. Union of India CWP No. 10889 of 2017, decided on July
22, 2019.
29. We do not agree with the aforesaid contention advanced on
behalf of learned counsel for the petitioner. Pursuant to the judgment
passed by the Punjab and Haryana High Court in Harkaran Dass
Vedpal [Harkaran Dass Vedpal v. Union of India (CWP No. 10889
of 2017, decided on July 22, 2019 (P&H)).] , a further amendment
was carried out by a Finance Act, 2020 dated March 27, 2020. The
same, came into effect retrospectively from March 29, 2018. By the
Finance Act, 2020, the Explanation 4 to section 28 of the Customs
Act was substituted and the same reads as under:
“Explanation 4.– For the removal of doubts, it is hereby
declared that notwithstanding anything to the contrary
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contained in any judgment, decree or order of the Appellate
Tribunal or any court or in any other provision of this Act or
the rules or regulations made thereunder, or in any other law
for the time being in force, in cases where notice has been
issued for non-levy, short-levy, non-payment, short-payment
or erroneous refund, prior to the 29th day of March, 2018,
being the date of commencement of the Finance Act, 2018
(13 of 2018), such notice shall continue to be governed by
the provisions of section 28 as it stood immediately before
such date.”
30. The intention of the legislation, thus, is apparent that the show-
cause notices which were issued prior to the Finance Act coming into
force the Finance Act, 2014 were required to be governed by
unamended Act of section 28(9) of the Customs Act.
31. Therefore, the question, which requires consideration now is
whether in terms of erstwhile section 28(9) of the Customs Act, the
impugned SCN dated February 14, 2018 has lapsed having not been
adjudicated within the period of 12 months. In other words, whether
in the facts and circumstances of the present case, it was not possible
for the Revenue to adjudicate the impugned SCN within the period
of 12 months from the date of issuance.
32. The unamended section 28(9) of the Customs Act, specifically
provides that the proper officer “shall” determine the amount of duty
within six months or within one year, as the case may be, from the
date of notice. It only provides certain degree of inbuilt flexibility by
incorporating the words “where it is possible to do so”.
33. The phrases “as far as possible” and “as far as practicable”
appear in other statutes as well came up for consideration before the
apex court in C.N. Paramsivam v. Sunrise Plaza [(2013) 177 Comp
Cas 484 (SC); (2013) 9 SCC 460; (2013) 4 SCC (Civ) 404; 2013
SCC OnLine SC 40.] . It is observed that the words “possible” and
“practicable” are more or less interchangeable along with the other
words such as feasible, performable, etc. The incorporation of such
words gives certain degree of flexibility to the Department such as if
some circumstances or insurmountable exigencies arise, which
makes the recourse unpracticable or not possible, the authorities can
deviate from what was required to be done in terms of the statute.
When the challenge is laid to the act of the authorities deviating from
the rule, the onus shifts on the authority to prove that it was not
practicable or possible to follow the rule. The same is to be
adjudicated on the facts and circumstances of each case.
34. The flexibility, at the same time, in our opinion, cannot be
equated with the lethargy of the Department or its officers. The
Legislature has mandated the show-cause notices to be adjudicated
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within six months or one year as the case may be; it has provided
flexibility only to the extent that if the same is not
practicable/possible the period can be extended. The phrase “where it
is possible to do so” would only mean that wherever it is not
practicable/possible to do certain act, the period can be extended.
The same, however, cannot be an endless period without any
plausible justification.”
50. In support of its conclusion rendered in the backdrop of the
unamended Section 28, the Court also had an occasion to consider the
judgment rendered by our High Court in Sunder System (P) Ltd. vs.
Union of India25 and which was concerned with Section 73(4B) of the
1994 Act. The Division Bench in this respect observed as follows:
“35. This court in Sunder Systems Private Limited [Sunder System
Pvt. Ltd. v. Union of India, 2019 SCC OnLine Del 12137.] , had an
occasion to consider section 73(4B)(a) and (b) of the Finance Act,
1994, which read as under:
“73. Recovery of service tax not levied or paid or short-
levied or short-paid or erroneously refunded.–…
(4B) The Central Excise Officer shall determine the amount
of service tax due under sub-section (2)–
(a) within six months from the date of notice where it is
possible to do so, in respect of cases falling under 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 the
proviso to sub-section (1) or the proviso to sub-section
(4A).”
36. Section 73, as referred to above, contains a provision that is
identically worded as the erstwhile section 28(9) of the Customs Act.
This court, after considering the facts of that case, had allowed the
writ petition on the ground that the show-cause notice was not
adjudicated within the time prescribed.
37. This court after considering the circumstances as narrated by the
Revenue, held as under:
“12. In the present case, from the respondents’ list of dates,
it is apparent that it was certainly possible for the
adjudicating authority to adjudicate upon the show-cause
25
2019 SCC OnLine Del 12137
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notice issued to the petitioner within a period of one year at
least from the conclusion of arguments on February 3, 2015,
if not earlier.
13. Since that has not been done, the present writ petition is
liable to be allowed on the short ground of limitation
alone.””
51. Proceeding then to examine the challenge on facts, the Court in
Swatch Group held:
“42. The respondent has merely produced various letters received
from the petitioner, DRI, and others, and has contended that some
adjournments were asked for by the petitioners. Admittedly, the
matter was listed from time to time for a personal hearing. However,
no justification has been provided as to why it was not possible for
the Department to determine the amount of customs duty within the
prescribed period of time.
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
provided as to why the hearings were not concluded on the said dates
and the duties payable, if any, were not determined.
xxxx xxxx xxxx
46. In our view, there is no material to show that it was not possible
for the proper officer to determine the amount of duty within the
prescribed period. The mention of the words, “where it is not
possible to do so”,in our opinion, does not enable the Department to
defer the determination of the notices for an indeterminate period of
time. The Legislature in its wisdom has provided a specific period
for the authority to discharge its functions. The indifference of the
concerned officer 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.”
52. The question of delayed adjudication arose yet again in Gala
International (P) Ltd. vs. Revenue Intelligence Directorate 26. Hereto
the challenge was raised on the ground that the SCN proceedings had
not been concluded despite almost 14 years having lapsed. The Court
26
2023 SCC OnLine Del 6073
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ultimately came to conclude that the adjudication proceedings would
not sustain bearing in mind the view expressed in Nanu Ram Goyal I &
II and Swatch Group. This is apparent from the following observations
which were rendered in Gala International and are reproduced
hereinbelow:
“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. Commr. (CGST &
CE) [Nanu Ram Goyal v. Commr. (CGST & CE), (2023) 6 HCC
(Del) 489 : (2023) 116 GSTR 495] 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 (30-4-2009 to 21-7-2016) even
though there was no impediment in adjudicating the same.
xxxx xxxx xxxx
36. It is at once clear that the period within which the impugned
show-cause notice was required to be adjudicated has long since
elapsed. The controversy raised is squarely covered by the recent
decision of this Court in Swatch Group India (P) Ltd. v. Union of
India [Swatch Group India (P) Ltd. v. Union of India, 2023 SCC
OnLine Del 4938] . In view of the above, it is no longer open for the
respondents to proceed with the adjudication of the impugned show-
cause notice. Accordingly, the impugned letters recommencing the
adjudication proceedings are set aside. Since the period for
adjudication of the impugned show-cause notice has elapsed, the
same cannot be adjudicated.”
53. To complete our review of precedents, we propose to lastly
notice yet another decision rendered by a Division Bench of the Court
in Gautam Spinners vs. Commr. of Customs 27. Gautam Spinners too
raised a challenge to the validity of the adjudication proceedings which
had commenced pursuant to the issuance of SCNs and with it being
27
2023 SCC OnLine Del 4041
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alleged that in light of the evident failure to conclude the same within
reasonable time, the proceedings were liable to be invalidated. The
respondents in Gautam Spinners had sought to salvage the position on
facts as they prevailed, with reference to certain directions issued by the
Board under sub-section (9-A) of Section 28 of the Customs Act. The
Court, however, found that those directions would not enure to the
benefit of the respondents since they were concerned solely with a
group of assessees other than the writ petitioners. The second
explanation which was proffered by the respondents’ for the inordinate
delay and was attributed to the flux in the legal position which
prevailed in light of Canon I also came to be negated in light of the
Court finding that the SCNs had in fact been issued by the competent
jurisdictional Commissionerates as opposed to an officer of the DRI.
54. The Court then proceeded to take note of the significant
amendments which had come to be introduced in Section 28 of the
Customs Act by virtue of the 2018 Act and held as follows:
“10. As would be evident from a reading of the aforesaid provision,
sub-section (4) provides a window of five years from the relevant
date within which proceedings under the said provision may be
initiated. The proceedings so initiated are liable to be brought to a
close in accordance with the statutory timelines which stand set out
in sub-section (9). In terms of sub-section (9) and since the notice
had been issued with reference to section 28(4), the proceedings
were liable to be brought to a close within one year from the date of
the notice and in the facts of the present case, the same being
computed from August 5, 2021.
11. Of equal significance is the amendment which came to be
introduced in section 28(9)(b) in terms of the Finance Act, 2018 [
Act 13 of 2018.] and pursuant to which the words “where it is
possible to do so” came to be deleted. The statutory amendment as
introduced in terms of the aforenoted Act 13 of 2018 thus clearly
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petitioner that the period of one year as prescribed in clause (b) was
legislatively conferred a mandatory flavour.
xxxx xxxx xxxx
14. We thus find ourselves unable to accept the position of any legal
impediment which could be recognised to have either fettered the
jurisdiction or restrained the concerned jurisdictional
Commissionerates from proceeding to finalize the SCNs’ in
accordance with section 28(9)(b). The direction of similar SCNs’
being placed in abeyance and which is an aspect which is referred to
in the directives of the Board must necessarily be recognised to be
restricted to those SCNs’ which may have originally been issued by
the DRI. This since undisputedly the judgment in Canon
India [(2021) 16 GSTR-OL 1 (SC); 2021 SCC OnLine SC 200.] did
not place a cloud on the authority and jurisdiction of Customs
authorities to initiate proceedings under section 28(4) or take those
proceedings to their logical conclusion. The competent authority of
Customs would have been justified in placing the impugned SCN
proceedings pending only in a situation where the original SCNs’
had been issued by an officer of the DRI. This since it was the
aforenoted situation which confronted the Department in the matter
of Anil Agarwal. It was the factual position as obtaining in the matter
of Anil Agarwal and 11 other noticees which was liable to be
understood to constitute the “similar matter” spoken of in section
28(9A)(c) of the Act.
15. We are thus of the firm opinion that the proceedings initiated
against the present petitioners cannot be said to be covered under the
directives of the Board noticed hereinabove. Those SCNs’ would
also not fall within the ambit of section 28(9A)(c). Since admittedly,
the maximum period as prescribed under section 28(9) has expired,
those proceedings would not survive in law.”
55. Before us, the respondents while controverting the contentions of
the writ petitioners as noted above, have firstly alluded to the individual
facts which prevail and valiantly sought to explain away the delay
caused. It was also alleged that in most of the cases, the petitioners had
failed to render cooperation in the adjudication proceedings and
consequently, the delay cannot be attributed to the respondents. They
also sought to rely upon the directives of the Board which had been
issued from time to time to submit that those clearly bound the
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individual adjudicating authorities and that they were in terms thereof
constrained to place matters in abeyance.
56. While we have already extracted the instructions dated 29 June
2016 and 17 March 2021 hereinabove, in order to evaluate and
appreciate the submissions addressed by the respondents, it would also
be pertinent to refer to two additional instructions dated 03 January
2017 and 03 November 2017 which are reproduced hereinbelow:
“F. No. 276/104/2016-C.8A (Pt.)
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Legal Cell)
*******
th
‘C’ Wing, 5 Floor, HUDCO-VISHALA, Building
Bhikaji Cama Place, R.K. Puram,
New Delhi – 66: dted the 03.01.2017
InstructionTo,
1. All Principal Chief Commissioners/ Chief Commissioners of
Customs, Central Excise and Service Tax;
2. The Director General of Revenue Intelligence/ Central Excise
Intelligence;
3. [email protected]
Sir/ Madam,
Sub: Instruction to Show Cause Notice issued in relation to sub-
section (11) of Section 28 of the Customs Act, 1962 on the
competency of officers of DGDRI, DGCEI and Customs (Prev.) in
the Call Book- reg.
I am directed to refer to Board Instructions of even no. dated
29.06.2016 & 28.12.2016 (copy available on CBEC website) on the
above subject.
2. In this regard, I am directed to say that the Board inter alia,
had referred the issue of pending adjudications of cases covered by
the above said Board Instruction to the Ld. Solicitor General of
India. The Ld. Solicitor General has opined, inter alia, that in view
of the unconditional stay in force, granted by the Hon’ble Supreme
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Court, the Department could continue with adjudication of the Show
Cause Notices hitherto covered by the Mangali Impex judgment.
3. Thus, in view of the opinion of the Ld. Solicitor General, the
Board Instruction of even no. dated 29.06.2016 & 28.12.2016 on the
above subject are hereby withdrawn. Consequently, the Show Cause
Notices, which were kept in the Call Book in view of the above said
Board Instructions, needs to be taken out of the Call Book
immediately and the adjudication of such Show Cause Notices are to
be proceeded with in accordance with law.
Yours faithfully,
(Harsh Vardhan)
Senior Analyst
Ph. 011- 26195405
xxxx xxxx xxxx
F. No.437/143/2009-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
229A-North Block, New Delhi
Dated: the 3rd November, 2017
OFFICE MEMORANDUM
Subject: Monitoring of Show Cause Notices issued in relation to
M/s. Mangli Impex judgement and their adjudication-Reg.
The undersigned is directed to refer to D.O.F. No.437/143/2009-
Cus.IV.-IV-pt.II dated 06.1.2017 of Special Secretary & Member,
CBEC wherein it was asked to take out Show Cause Notice s issued
prior to 08.07.2011 from the call book and draw up an action plan
for adjudication of the cases in a time bound manner.
2. In this regard, it has been brought to the notice of the Board
that Hon’ble CESTAT has passed orders on a batch of appeals in the
backdrop of the Mangali Impex case, pending in the Hon’ble
Supreme Court. Owing to the judgement of the Hon’ble CESTAT in
the said cases, remanding back the appeals to the concerned
authorities to pass appropriate orders on the basis of the outcome of
the Supreme Court in the Mangali Impex case. Adjudication
Authorities are constrained not to pass orders, in such cases.
3. In the present scenario, Board is of the view that it would not
be feasible to adhere to earlier instructions issued vide the saie D.O.
letter of the Member (CBEC) to carry out adjudication of SCNs
pertaining to period prior to 08.07.2011.
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4. Keeping in view of the above, undersigned is further directed
to request you to take suitable further action and inform the field
formations accordingly.
(Anil Kumar Sapra)
OSD (Customs-IV)
Commissioner (legal),
5th Floor, Hudco Vishala Building,
‘B’ Wing, Bhikaji Cama Place,
R.K. Puram, New Delhi.”
57. As is evident from a reading of the instructions dated 29 June
2016, the same was prompted by the decision handed down by our
Court in Mangali Impex. The aforenoted instruction acknowledges that
notwithstanding the decision of the Supreme Court in Sayed Ali and the
validating amendments introduced in Section 28, in light of the
challenge pending before the Supreme Court against the judgment in
Mangali Impex, it would be appropriate to transfer all pending
adjudications to the call book till disposal of the matter by the Supreme
Court. It is relevant to note that insofar as the challenge to Mangali
Impex is concerned, the Supreme Court had by its order dated 01
August 2016 stayed the operation of the judgment. The respondents had
thereafter and bearing in consideration the unconditional stay that was
granted by the Supreme Court, issued fresh instructions on 03 January
2016 withdrawing the earlier instruction dated 29 June 2016 thus
directing all concerned to take out matters which had been transferred
to the call book.
58. Inexplicably and a few months thereafter, the Board took yet
another turn this time ostensibly prompted by a decision rendered by
the CESTAT on a batch of appeals and which had remitted matters to
adjudicating authorities in light of the pendency of the appeal before the
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Supreme Court in the matter of Mangali Impex. The Board thus opined
that “it would not be feasible to adhere to earlier instructions”.
59. Seeking to overcome the various judgments that were cited from
the side of the writ petitioners, the respondents principally rested their
submissions on two brief orders passed by the Supreme Court in Swati
Menthol and CCE vs. M/s Bhagsons Paint Industry (India) 28. In
Bhagsons Paint Industry, the Supreme Court while disposing of an
appeal of the Department had observed as follows:
“[Order]. – The Tribunal in an appeal arising under the Central
Excise Act held that the adjudication made after a lapse of nearly
nine years after the issue of show cause notice is not permissible and
set aside the same.
2. There is no statutory bar to adjudicate the matter even after lapse
of nine years after the issue of show cause notice and the
adjudication pertains only to the actual levy of the duty which is due
to the department and not to any levy of interest or penalty. In these
circumstances we think the view taken by the Tribunal is not
justified and we set aside the order made by the Tribunal and remit
the matter to the Tribunal for fresh disposal in accordance with law
after restoration of the appeal to its original number. The appeal is
allowed accordingly.”
60. Similarly, in Swati Menthol, the Supreme Court had held as
under:
“6. The appellant Department is aggrieved by the impugned order
dated 17.05.2021 by which the High Court has closed the
proceedings initiated by virtue of two show cause notices dated
02.03.2010 and 06.05.2010 issued to the respondents proposing to
demand the CENVAT credit availed by the respondent(s) during the
period from April, 2005 to March, 2009 and further credit availed by
the respondent(s) during April, 2009 to February, 2010. Pursuant to
the issuance of the notices and on receipt of the same, the
respondent(s) herein filed their replies to the show cause notices.
7. Thereafter, the matter was posted for personal hearing of the
respondent(s) who were requested to appear for personal hearing28
(2003) 158 ELT 129 (SC)
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before the Commissioner, Central GST Commissionerate,
Chandigarh. However, the matter did not progress on several
occasions on account of the respondents failure to appear before the
said authority. Thereafter, by communication dated 10.10.2018, the
respondents were informed that personal hearing, which was to take
place had been adjourned sine die and the next date of hearing would
be informed later. Since there was no further communication from
the said Authority and three years had since passed, CWP
No.9340/2021 was filed before the High Court seeking quashing of
the notices issued by the Department and also the proceedings
commenced thereon. The High Court has accepted the contentions of
the respondent(s) and has quashed the show cause notices issued by
the Appellant(s)/Department. As a result, the proceedings have also
been concluded.
Learned Additional Solicitor General submitted that the
abrupt conclusion of the proceedings pursuant to the impugned order
has caused prejudice to the Revenue inasmuch as the proceedings
pursuant to the issuance of the show cause notices and the demand
made have not been adjudicated upon, whereas the respondent(s) are
liable to pay to the Department in terms of the demand made in the
show cause notices. He submitted that there were genuine reasons as
to why the proceedings could not conclude inasmuch as a matter
similar to the matter under consideration was the subject matter of a
writ petition before the Jammu & Kashmir High Court and therefore,
a decision was taken to recommence the proceedings following the
decision from the High Court being received by the Department.
He further submitted that if the impugned order is to be
affirmed by this Court, then the Revenue would be prejudiced
inasmuch as the demands made by the Department would be stifled
on account of the impugned order passed by the High Court.
Per contra, learned counsel for the respondent drew our
attention to the fact that for ten long years the show cause notices
remained without any adjudication and in a similar matter, this Court
has, in the peculiar facts of the said case, affirmed the order of the
High Court and therefore, the same may be followed in respect of
the instant proceedings also.
8. By way of reply, learned Additional Solicitor General submitted
that if some time is granted and an opportunity is given to the
respondent(s), the proceedings would be concluded within the time
frame to be fixed by this Court and therefore, appropriate orders may
be made in this matter.
9. We find that the proceedings which were commenced by virtue of
the two show cause notices referred to above have not been
concluded although over a decade has passed. Be that as it may, we
find that submission made by learned Additional Solicitor General as
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to concluding the proceedings within the time frame to be fixed by
this Court needs to be accepted.
10. In the circumstances, we set aside the impugned order and we
remand the matter to the Commissioner of GST (adjudicating
Authority) with a direction to conclude the proceedings within a
period of eight weeks from 10.08.2023. Since the respondent(s)
is/are represented by learned counsel, the respondent(s) is/are
directed to appear before the concerned Authority on that date
(10.08.2023) without expecting any separate notices to be issued by
the said Authority to the respondent(s) herein.
11. It is needless to observe that the Authority which is seized of the
matter shall give adequate opportunity to both sides and conclude
the proceedings within a period of eight weeks from 10.08.2023.
12. All contentions on both sides are left open, to be taken up before
the concerned Authority.
13. The Appeal is allowed and disposed in the aforesaid terms. No
costs.
14. Pending application(s) shall stand disposed.”
61. It was on the basis of the aforenoted orders of the Supreme Court
that learned counsels for the respondents sought to contend that delay in
itself would not be sufficient ground to annul or interdict adjudication
proceedings and that notwithstanding an assertion of an inordinate
delay, the Court would be justified in remitting the matter to the
adjudicating authorities with appropriate directions for expeditious
closure. It is these rival submissions which fall for our consideration.
VI. THE ‘STATE OF FLUX’ QUESTION
62. We propose to firstly deal with the contention of the respondents
that it was the unsettled position in law which led to a delay in
adjudication. As noticed hereinabove, as per the respondents it was the
decisions in Sayed Ali, Mangali Impex and Canon I which had cast a
cloud on their right to pursue adjudication proceedings and impeded
their right to conclude proceedings with expedition. It must at the outset
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be noted that the record would reflect that not all of the SCN
proceedings issued pan-India had come to be penned by officers of the
DRI. This was a position which the Court had an occasion to take note
of in Gautam Spinners.
63. Even in cases where the proceedings may have been commenced
by an officer of the DRI and if we were to assume that the respondents
were compelled to stay their hands in light of the judgment in Sayed
Ali, we fail to discern any factor which may have either prevented or
restrained the respondents from initiating proceedings by placing
pending matters in the hands of the Customs officers.
64. Regard must also be had to the fundamental basis underlying the
passing of the Amendment and Validation Act in 2011. As is evident
from a reading of its Statement of Objects and Reasons 29, it was the
underlying intent of the Legislature to overcome the decision in Sayed
Ali and thus validate all adjudicatory action that may have been
initiated by officers of the DRI. The SOR is reproduced hereinbelow:
“Prefatory Note–Statement of Objects and Reasons. –The
Customs Act, 1962 consolidates and amends the law relating to
customs. Clause (34) of Section 2 of the said Act defines the
expression “proper officer” in relating to the functions under the said
Act to mean the officer of customs who is assigned those functions
by the Central Board of Excise and Customs or the Commissioner of
Customs. Recently, a question has arisen as to whether the
Commissioner of Customs (Preventive) is competent to exercise and
discharge the powers of a proper officer for issue of a notice for
demand of duty. The Hon’ble Supreme Court of India in Commr. of
Customs v. Sayed Ali, (2011) 3 SCC 537 held that only a customs
officer who has been specifically assigned the duties of assessment
and re-assessment in the jurisdiction area is competent to issue a
notice for the demand of duty as a proper officer. As such the
Commissioner of Customs (Preventive) who has not been assigned
the function of a “proper officer” for the purposes of assessment or
29
SOR
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re-assessment of duty and issue of Show Cause Notice to demand
customs duty under Section 17 read with Section 28 of the Act in
respect of goods entered for home consumption is not competent to
function as a proper officer which has not been the legislative intent.
2. In view of the above the Show Cause Notices issued over the time
by the Customs Officers such as those of the Commissionerates of
Customs (Preventive), Directorate General of Revenue Intelligence
and others, who were not specifically assigned the functions of
assessment and re-assessment of customs duty may be construed as
invalid. The result would be huge loss of revenue to the exchequer
and disruption in the revenue already mobilized in cases already
adjudicated. However, having regard to the urgency of the matter, the
Government issued notification on 6th July, 2011 specifically
declaring certain officers as proper officers for the aforesaid
purposes.
3. In the circumstances, it has become necessary to clarify the true
legislative intent that Show Cause Notices issued by Customs
Officers, i.e., officers of the Commissionerates of Customs
(Preventive), Directorate General of Revenue Intelligence (DRI),
Directorate General of Central Excise Intelligence (DGCEI) and
Central Excise Commissionerates for demanding customs duty not
levied or short levied or erroneously refunded in respect of goods
imported are valid, irrespective of the fact that any specific
assignment as proper officer was issued or not. It is, therefore,
purposed to amend the Customs Act, 1962 retrospectively and to
validate anything done or any action taken under the said Act in
pursuance of the provisions of the said Act at all material times
irrespective of issuance of any specific assignment on 6th July, 2011.
4. The Bill seeks to achieve the above objects.”
65. It was with the aforesaid avowed objective that sub-section (11)
came to be inserted in Section 28 of the Customs Act. As is manifest
from a plain reading of Section 28(11), the intent of that provision
clearly was to save and validate all proceedings initiated prior to 06
July 2011. It was in furtherance of the aforesaid legislative objective
that the provision incorporated a legal fiction by deployment of the
phrase “shall be deemed to have and always had”. This deeming
fiction stood extended not only with respect to the power to assess
under Section 17 but also bid us to acknowledge that all persons
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appointed as officers of customs under Section 4(1) of the Customs Act
would be deemed to have been proper officers for the purposes of
reassessment and reopening under Section 28. It thus becomes manifest
that despite the statute having duly empowered the respondents to
continue proceedings and specifically validating all action initiated
prior to 06 July 2011, the respondents failed to act in terms of that
legislative command.
66. While it is true that in Mangali Impex, the validity of the
Amendment and Validation Act had come to be questioned, the
judgment was ultimately stayed by the Supreme Court on 01 August
2016. The defence set up by the respondents would also merit
evaluation bearing in mind the conclusions which came to be recorded
by the Court in its judgment in Mangali Impex. The Court while ruling
on the impact of Section 28(11) in paragraph 61 firstly held as follows:
“61. Keeping the above principles in mind when section 28 has been
recasted by Act 8 of 2011 with effect from April 8, 2011 read with
section 28(11) which was introduced by the Customs (Amendment
and Validation) Act, 2011 with effect from September 16, 2011, the
position that emerges is as under :
(i) Section 28(11) states that all persons appointed as
customs officers prior to July 6, 2011 will be deemed to
always have had the power of assessment under section 17
and shall be deemed to always have been “proper officers”.
Further, this is notwithstanding anything to the contrary in
any judgment, decree or order of any court of law. While the
said provision is intended to overcome the defect pointed
out in the decision of the Supreme Court in Sayed Ali
[2011] 7 GSTR 338 (SC), section 28(11) of the Act does not
state that it would operate notwithstanding anything
contained either in the Act or any other Act for the time
being in force. In other words, the Legislature has not made
it explicit that section 28(11) would prevail notwithstanding
anything contained in Explanation 2 to section 28 of the
Act.
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(ii) On the contrary, Explanation 2 which, as it presently
stands, appears after section 28(11) of the Act as already
stood enacted with effect from April 8, 2011 opens with the
words “for the removal of doubts”. It is made clear that non-
levy, short-levy or erroneous refund prior to April 8, 2011
would be governed by section 28 “as it stood immediately
before the date on which such assent is received”.
(iii) Section 28(11), as it presently stands, was not in the
statute book prior to April 8, 2011. Therefore, no reference
can be made to section 28(11) of the Act for determining not
only the procedure but the very basis on which a non-levy,
short-levy or erroneous refund occurring prior to April 8,
2011 should be dealt with.
(iv) Prior to April 8, 2011 and even subsequent thereto, only
a “proper officer” who has been “assigned” specific
functions by the Central Board of Excise and Customs or
the Commissioner as amended by section 2(34) of the Act
could undertake the task of non-levy, short-levy or
erroneous refund. Therefore, for any non-levy, short-levy or
erroneous refund prior to April 8, 2011, an officer of the
customs who has not been specifically assigned such
function in terms of the Act cannot exercise such power.
(v) Section 28(11), therefore, does not validate the show-
cause notices issued by the Directorate of Revenue
Intelligence, Directorate General of Central Excise
Intelligence officers who are not “proper officers” for the
purposes of section 2(34) of the Act if it amounted to
undertaking any assessment or reassessment of a non-levy,
short-levy or erroneous refund prior to April 8, 2011.
(vi) It is only for a period between April 8, 2011 and July 6,
2011 that such deemed “proper officer” can be said to have
been given retrospective power to deal with non-levy, short-
levy or erroneous refund for any period subsequent to April
8, 2011, i.e., the date on which section 28(11) read with
Explanation 2 could be said to have come into force.”
67. It further held that Section 28(11) if upheld would result in the
conferment of jurisdiction on a “plurality of officers” and thus fall foul
of Article 14 of the Constitution. It thus proceeded to record the
following conclusions:
“69. The court also finds merit in the contention that if jurisdiction is
exercised by one officer of the customs or of the Directorate of
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Revenue Intelligence or Directorate General of Central Excise
Intelligence, it should impliedly oust the jurisdiction of other officers
over the same subject matter. The doctrine of comity of jurisdiction
requires that for the proper administration of justice there should not
be an overlapping of the exercise of powers and functions. The
decision of the Punjab and Haryana High Court in Kenapo Textiles P.
Ltd. v. State of Haryana [1992] 84 STC 88 (P&H) and the decision
of the Supreme Court in India Household and Healthcare Ltd. v. LG
Household and Healthcare Ltd. [2007] 136 Comp Cas621 (SC) are
relevant in this context.
Conclusion on effect and validity of section 28(11)
70. The net result of the above discussion is that the Department
cannot seek to rely upon section 28(11) of the Act as authorising the
officers of the customs, Directorate of Revenue Intelligence,
Directorate General of Central Excise Intelligence, etc., to exercise
powers in relation to non-levy, short-levy or erroneous refund for a
period prior to April 8, 2011 if, in fact, there was no proper assigning
of the functions of reassessment or assessment in favour of such
officers who issued such show-cause notices since they were not
“proper officers” for the purposes of section 2(34) of the Act and
further because Explanation 2 to section 28 as presently enacted
makes it explicit that such non-levy, short-levy or erroneous refund
prior to April 8, 2011 would continue to be governed only by section
28 as it stood prior to that date and not the newly recast section 28 of
the Act.
Section 28(11) interpreted in the above terms would not
suffer the vice of unconstitutionality. Else, it would grant wide
powers of assessment and enforcement to a wide range of officers,
not limited to customs officers, without any limits as to territorial
and subject matter jurisdiction and in such event the provision would
be vulnerable to being declared unconstitutional.
As regards the period subsequent to April 8, 2011, it is
evident that if the administrative chaos as envisaged by the Supreme
Court in Sayed Ali [2011] 7 GSTR 338 (SC) should not come about,
there cannot be any duplicating and/or overlapping of jurisdiction of
the officers. It would have to be ensured through proper co-
ordination and administrative instructions issued by the Central
Board of Excise and Customs that once a show-cause notice is
issued specifying the adjudicating officer to whom it is answerable,
then that adjudication officer, subject to such officer being a “proper
officer” to whom the function of assessment has been assigned in
terms of section 2(34) of the Act, will alone proceed to adjudicate
the show-cause notice to the exclusion of all other officers who may
have the power in relation to that subject matter.
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The question as to the constitutional validity and effect of
section 28(11) of the Act is answered accordingly.”
68. Quite apart from Mangali Impex having been overruled in Canon
II, we find that our original judgment clearly appears to have
misconstrued the intent underlying the insertion of Explanation 2 to
Section 28 of the Customs Act. It also failed to appreciate the
indubitable fact that while the said provision came to be introduced in
the statute book on 08 April 2011, the validating provision comprised in
sub-section (11) came to be inserted thereafter on 26 September 2011.
As is evident from the SOR of the Validation and Amendment Act, sub-
section (11) was inserted with retrospective effect and bid us to assume
that it would always be deemed to have formed part of the original
statute. It was thus clearly not impacted by Explanation 2 and which in
any case, as the Supreme Court explains in Canon II, was intended to
subserve an independent objective. We deem it apposite to extract the
following paragraphs from Canon II to buttress our conclusions:
“138. As stated in the foregoing extract, sub-section (11) was
introduced in the statute to remedy the defects highlighted by this
Court in the case of Sayed Ali (supra) and the same retrospectively
empowered all officers of customs appointed under Section 4(1)
before 06.07.2011 to conduct assessments under Section 17 of the
Act and to be proper officers for the purpose of Section 28.
139. The Statement of Objects and Reasons of the Validation Act
explained that the introduction of Section 28(11) was necessary
because the position of law on the functions of proper officers as
interpreted by this Court in Sayed Ali (supra) and the consequent
invalidation of show cause notices issued by the Commissionerates
of Customs (Preventive), DRI and others, was not the legislative
intent. Parliament clarified that show cause notices issued by officers
of the Commissionerates of Customs (Preventive), DRI, Directorate
General of Central Excise Intelligence (DGCEI) and Central Excise
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imported are valid, irrespective of whether any specific assignment
as proper officer was issued.
xxxx xxxx xxxx
142. The very same argument has been canvassed before us by the
respondents herein. To comprehensively address the submissions
made before us, we find it necessary to address the following three
issues:
(i) What is the scope of Explanation 2 to Section 28?
(ii) Whether the field of operation of Section 28(11) and
Explanation 2 overlaps? In other words, what is the scope of
the non-obstante clause in sub-section (11)?
(iii) Whether Section 28(11) cures the defect pointed out
in Sayed Ali (supra)?
xxxx xxxx xxxx
147. Having analysed the aforesaid modifications made by
Parliament to old Section 28, we can say with certainty that none of
the changes made by the amendments to Section 28 has any impact
on the competence of the proper officer for the purposes of
fulfilment of functions under Section 28. In our considered view, the
only major change that warrants the clarification provided under
Explanation 2 is the distinction with respect to the limitation period
for the issuance of show cause notices.
xxxx xxxx xxxx
151. Further, the finding in Mangali Impex (supra) that Section
28(11) is overbroad and confers the powers of the proper officer to
multiple sets of customs officers without any territorial or pecuniary
jurisdictional limit which in turn may lead to “utter chaos and
confusion” as highlighted in Sayed Ali (supra), is misconceived in
our view. The apprehension of the petitioner therein was that
plurality of proper officers empowered under Section 28 would
result in more than one show cause notice and a consequent misuse
of the provision, which would be detrimental to the interests of the
persons chargeable with the payment of duty. Although, Mangali
Impex (supra) declared Section 28(11) to be invalid on this ground, it
suggested that the Board should issue instructions in its
administrative capacity that once a show cause notice is issued
specifying an adjudicating authority subject to such an officer being
the proper officer for the purposes of Section 28, then he or she alone
should proceed to adjudicate that particular show cause notice to the
exclusion of all other officers who may have power in relation to that
subject matter. We find this to be a reasonable construal of the import
and application of Section 28(11).
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xxxx xxxx xxxx
154. Thus, we are of the considered view that the enactment of sub-
section (11) of Section 28 cures the defect pointed out in Sayed
Ali (supra) and the judgment in Mangali Impex (supra) deserves to
be set aside.
155. It follows from the above discussion that sub-section (11) of
Section 28 is constitutionally valid, and its application is not limited
to the period between 08.04.2011 and 16.09.2011.
156. For the reasons in the foregoing paragraphs, we hold that the
Bombay High Court judgment in Sunil Gupta (supra) lays down the
correct position of law, whereas the Delhi High Court decision
in Mangali Impex (supra) is incorrect and is consequently set aside.”
69. For the sake of completeness, it would be pertinent to take note
of the subsequent repeal of the Validation and Amendment Act in terms
of the Repealing and Amending Act, 2019 30. However, the same
would be of little consequence in light of Section 4 thereof and which is
extracted hereinbelow:
“4. The repeal by this Act of any enactment shall not affect any other
enactment in which the repealed enactment has been applied,
incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or
consequences of anything already done or suffered, or any right,
title, obligation or liability already acquired, accrued or incurred, or
any remedy or proceeding in respect thereof, or any release or
discharge of or from any debt, penalty, obligation, liability, claim or
demand, or any indemnity already granted, or the proof of any past
act or thing;
nor shall this Act affect any principle or rule of law, or
established jurisdiction, form or course of pleading, practice or
procedure, or existing usage, custom, privilege, restriction,
exemption, office or appointment, notwithstanding that the same
respectively may have been in any manner affirmed or recognised or
derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment revive or
restore any jurisdiction, office, custom, liability, right, title,
privilege, restriction, exemption, usage, practice, procedure or other
matter or thing not now existing or in force.”
30 2019 Act
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70. Regard must also be had to the fact that while Mangali Impex
had come to be decided on 03 May 2016, Parliament intervened yet
again and introduced the following significant provision in Section 28
in terms of the 2018 Act. We deem it appropriate to advert to
Explanation 4 and which at the relevant time was framed in the
following terms:
“Explanation 4.–For the removal of doubts, it is hereby declared
that in cases where notice has been issued for non-levy, not paid,
short-levy or short-paid or erroneous refund after the 14th day of
May, 2015, but before the date on which the Finance Bill, 2018
receives the assent of the President, they shall continue to be
governed by the provisions of Section 28 as it stood immediately
before the date on which such assent is received.”
71. The said provision stood untouched by any judicial declaration,
and which could have been recognised as impeding the right of the
respondents to pursue adjudication proceedings which had already been
initiated. The legislative intent underlying Explanation 4 came to be
further fortified by virtue of the 2020 Act and which substituted the
existing provision with the following to operate retrospectively from 29
March 2018, the date when the 2018 Act had come to be promulgated:
“Explanation 4.–For the removal of doubts, it is hereby declared
that notwithstanding anything to the contrary contained in any
judgment, decree or order of the Appellate Tribunal or any Court or
in any other provision of this Act or the rules or regulations made
thereunder, or in any other law for the time being in force, in cases
where notice has been issued for non-levy, short-levy, non-payment,
short payment or erroneous refund, prior to the 29th day of March,
2018, being the date of commencement of the Finance Act, 2018 (13
of 2018), such notice shall continue to be governed by the provisions
of Section 28 as it stood immediately before such date.”
Thus, all proceedings emanating from SCNs issued prior to 29 March
2018 were ordained to be governed by Section 28 as it stood
immediately before that date. The clear intent of Explanation 4 was to
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insulate proceedings that were pending on the date when the 2018 Act
came to be promulgated and thus be freed from the impact of cessation
and interdiction of proceedings in light of the two Provisos which had
come to be inserted in Section 28(9).
72. It would be pertinent to recall that the First Proviso to Section
28(9) had stipulated that where a proper officer fails to conclude
adjudication proceedings in accordance with the time frames specified
in clauses (a) or (b) of Section 28(9), any officer senior to the proper
officer, having regard to circumstances which may have prevailed and
prevented conclusion of pending adjudication, to extend the period so
specified by a further period of six months and one year respectively. It
was, however, the Second Proviso inserted in terms of the 2018 Act
which brought closure to pending proceedings and dealt with the
contingency where the proper officer was to fail to conclude a
determination even within the extended period. In that eventuality, the
Second Proviso declared that pending proceedings would be deemed to
have come to an end as if no notice had been issued. Thus, the Second
Proviso to Section 28(9) would have resulted in the termination of all
proceedings which the proper officer would have failed to conclude
even within the extended timelines prescribed by the First Proviso to
Section 28(9). It was perhaps to overcome the fallout of the Second
Proviso which formed the basis for the introduction of Explanations 2
and 4.
73. It thus becomes manifest that the respondents while dealing with
all proceedings initiated prior to 29 March 2018 were required to
adhere to the precept of reasonable period and nothing further. The
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Legislature had thus introduced appropriate curial provisions in the
shape of sub-section (11) and Explanations 2 and 4 so as to enable and
empower the respondents to conclude pending proceedings. By the time
Canon I came to be pronounced on 09 March 2021, both sub-section
(11), as well as Explanation 4 existed on the statute book. It is pertinent
to note that although Canon I had doubted the authorization made in
favour of officers of the DRI, the said decision had not struck down or
adversely commented upon the scope and underlying intent of Section
28(11). In any event, post Canon I, the Legislature intervened yet again
when it passed the 2022 Act by virtue of Section 97 and made the
following provisions:
“97. Validation of certain actions taken under Customs Act.–
Notwithstanding anything contained in any judgment, decree or
order of any court, tribunal, or other authority, or in the provisions of
the Customs Act, 1962 (Act 52 of 1962) (hereinafter referred to as
the Customs Act),–
(i) anything done or any duty performed or any action taken
or purported to have been taken or done under Chapters V,
VAA, VI, IX, X, XI, XII, XIIA, XIII, XIV, XVI and XVII
of the Customs Act, as it stood prior to its amendment by
this Act, shall be deemed to have been validly done or
performed or taken;
(ii) any notification issued under the Customs Act for
appointing or assigning functions to any officer shall be
deemed to have been validly issued for all purposes,
including for the purposes of Section 6;
(iii) for the purposes of this section, Sections 2, 3 and 5 of
the Customs Act, as amended by this Act, shall have and
shall always be deemed to have effect for all purposes as if
the provisions of the Customs Act, as amended by this Act,
had been in force at all material times.
Explanation.–For the purposes of this section, it is hereby
clarified that any proceeding arising out of any action taken under
this section and pending on the date of commencement of this Act
shall be disposed of in accordance with the provisions of the
Customs Act, as amended by this Act.”
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Despite these legislative interventions, the respondents continued to
abstain from taking proactive and effective steps to conclude
proceedings that had been initiated as far back as 2006.
VII. DELAY IN ADJUDICATION: ITS IMPACT
74. The meaning to be ascribed to the phrase “where it is possible to
do so” was lucidly explained in Swatch Group. As the Court observed
on that occasion, while the aforesaid expression did allow a degree of
flexibility, it would have to be understood as being concerned with
situations where the proper officer may have found it impracticable or
impossible to conclude proceedings. Swatch Group had explained that
expression to be applicable only where the proper officer were faced
with “insurmountable exigencies” and further recourse being rendered
“impracticable or not possible”. It thus held that the leeway provided
by the statute when it employed the phrase “where it is possible to do
so”, could not be equated with lethargy or an abject failure to act
despite there being no insurmountable factor operating as a fetter upon
the power of the proper officer to proceed further with adjudication. It
was these aspects which came to be further amplified by the Court in
Gala International.
75. More importantly, this Court had in Nanu Ram Goel clearly held
that placing matters in abeyance for years together or transferring them
to the call book would not be liable to be countenanced as factors
relevant or germane to explain an inordinate delay in adjudication.
Insofar as the precept of “reasonable period” which would bind the
respondents to conclude adjudication or to initiate action
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notwithstanding a statute not prescribing a period of limitation, it would
be pertinent to take note of the observations of the Supreme Court in
Union of India vs. Citi Bank31, when it had held it would be unfair
and unreasonable to countenance such powers being exercised in
respect of transactions which had occurred more than eight years ago:
“25. It can thus clearly be seen that the said Rules require every
Banking Company to preserve records stated in Rule 2 for five years
and eight years for records mentioned in Rule 3 respectively. No
doubt that under Rule 4 of the said Rules, the RBI, having regard to
the factors specified in sub-section (1) of Section 35-A, by an order
in writing, is empowered to direct any banking company to preserve
any of the books, accounts or other documents, etc. for a period
longer than the period specified under the said Rules.
26. Undisputedly, no such order has been placed on record which
required the respondents-Banks to preserve records concerning the
transactions in question for a period longer than eight years.
27. It could thus be seen that even under the said Rules, the Banks
are required to preserve the record for five years and eight years
respectively. On this ground also, permitting the show cause notices
and the proceedings continued thereunder of the transactions which
have taken place much prior to eight years would be unfair and
unreasonable.”
76. Way back in 1969, the Supreme Court in State of Gujarat vs.
Patil Raghav Natha 32, had held that while Section 211 of the Land
Revenue Code did not prescribe a limitation period for the
Commissioner to revise orders, such power must be exercised within a
reasonable time, determined by the facts of a case and the nature of the
order. In this case, the Commissioner’s action, over a year later, was
deemed unreasonably delayed with the Supreme Court observing thus:
31
2022 SCC OnLine SC 1073
32
(1969) 2 SCC 187
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“11. The question arises whether the Commissioner can revise an
order made under Section 65 at any time. It is true that there is no
period of limitation prescribed under Section 211, but it seems to us
plain that this power must be exercised in reasonable time and the
length of the reasonable time must be determined by the facts of the
case and the nature of the order which is being revised.
12. It seems to us that Section 65 itself indicates the length of the
reasonable time within which the Commissioner must act under
Section 211. Under Section 65 of the Code if the Collector does not
inform the applicant of his decision on the application within a
period of three months the permission applied for shall be deemed to
have been granted. This section shows that a period of three months
is considered ample for the Collector to make up his mind and
beyond that the legislature thinks that the matter is so urgent that
permission shall be deemed to have been granted. Reading Sections
211 and 65 together it seems to us that the Commissioner must
exercise his revisional powers within a few months of the order of
the Collector. This is reasonable time because after the grant of the
permission for building purposes the occupant is likely to spend
money on starting building operations at least within a few months
from the date of the permission. In this case the Commissioner set
aside the order of the Collector on October 12, 1961 i.e more than a
year after the order and it seems to us that this order was passed too
late.”
77. Similarly, in Govt. of India vs. Citedal Fine
Pharmaceuticals 33, the Supreme Court held that in the absence of a
period of limitation being prescribed or a silence in the statute,
authorities would still be obliged to exercise their power within a
“reasonable period”. In Citedal, the Supreme Court held:
“6. Learned counsel appearing for the respondents urged that Rule
12 is unreasonable and violative of Article 14 of the Constitution, as
it does not provide for any period of limitation for the recovery of
duty. He urged that in the absence of any prescribed period for
recovery of the duty as contemplated by Rule 12, the officer may act
arbitrarily in recovering the amount after lapse of long period of
time. We find no substance in the submission. While it is true that
Rule 12 does not prescribe any period within which recovery of any
duty as contemplated by the rule is to be made, but that by itself does
not render the rule unreasonable or violative of Article 14 of the
Constitution. In the absence of any period of limitation it is settled33
(1989) 3 SCC 483
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that every authority is to exercise the power within a reasonable
period. What would be reasonable period, would depend upon the
facts of each case. Whenever a question regarding the inordinate
delay in issuance of notice of demand is raised, it would be open to
the assesee to contend that it is bad on the ground of delay and it will
be for the relevant officer to consider the question whether in the
facts and circumstances of the case notice of demand for recovery
was made within reasonable period. No hard and fast rules can be
laid down in this regard as the determination of the question will
depend upon the facts of each case.”
78. More recently in SEBI vs. Sunil Krishna Khaitan34, the
Supreme Court again reiterated the principle that when no limitation
period is prescribed for initiating proceedings under a statute, action
must still be taken within a reasonable period and which could vary
based on the facts and circumstances of each case. The key factors to be
considered, the Supreme Court explained, would include the nature of
the violation, whether it was concealed, potential prejudice caused, and
the creation of third-party rights. The Court reaffirmed that authorities
must act without undue delay to prevent injustice and abuse of power,
while ensuring that the statute’s objectives are met. The Court also
noted that public interest demands that stale matters are not pursued
unnecessarily and objections to delay must be fairly and rationally
considered. It enunciated these precepts in the following terms:
“92. This Court in the judgment authored by one of us (Sanjiv
Khanna, J.) in Bhavesh Pabari [SEBI v. Bhavesh Pabari, (2019) 5
SCC 90] had examined the question of delay and laches in initiating
proceedings under Chapter VI-A of the Act and the principle of law
that when no limitation period is prescribed proceedings should be
initiated within a reasonable time and what would be reasonable time
would depend upon facts and circumstances of each case. In this
regard, it was held as under : (SCC pp. 104-05, para 35)
“35. The appellants have also contended that in the absence
of any prescribed limitation period, SEBI should have34
(2023) 2 SCC 643
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issued show-cause notice within a reasonable time and there
being a delay of about 8 years in issuance of show-cause
notice in 2014, the proceedings should have been dropped.
This contention was not raised before the adjudicating
officer in the written submissions or the reply furnished. It
is not clear whether this contention was argued before the
Appellate Tribunal. There are judgments which hold that
when the period of limitation is not prescribed, such power
must be exercised within a reasonable time. What would be
reasonable time, would depend upon the facts and
circumstances of the case, nature of the default/statute,
prejudice caused, whether the third-party rights had been
created, etc. The show-cause notice in the present case had
specifically referred to the respective dates of default and
the date of compliance, which was made between 30-8-
2011 to 29-11-2011 (delay was between 927 days to 1897
days). Only upon compliance being made that the defaults
had come to notice. In the aforesaid background, and so
noticing the quantum of fine/penalty imposed, we do not
find good ground and reason to interfere.”
93. The directions given in the aforesaid quotation should not be
understood as empowering the authorities/Board to initiate action at
any time. In the absence of any period of time and limitation
prescribed by the enactment, every authority is to exercise power
within a reasonable period. What would be the reasonable period
would depend upon facts of each case, such as whether the violation
was hidden and camouflaged and thereby the Board or the
authorities did not have any knowledge. Though, no hard and fast
rules can be laid down in this regard as determination of the question
will depend on the facts of each case, the nature of the statute, the
rights and liabilities thereunder and other consequences, including
prejudice caused and whether third party rights have been created are
relevant factors. Whenever a question with regard to inordinate delay
in issuance of a show-cause notice is made, it is open to the noticee
to contend that the show-cause notice is bad on the ground of delay
and it is the duty of the authority/officer to consider the question
objectively, fairly and in a rational manner. There is public interest
involved in not taking up and spending time on stale matters and,
therefore, exercise of power, even when no time is specified, should
be done within reasonable time. [ See State of Gujarat v. Patil
Raghav Natha, (1969) 2 SCC 187, para 11; Mansaram v. S.P.
Pathak, (1984) 1 SCC 125, para 12; Union of India v. Citedal Fine
Pharmaceuticals, (1989) 3 SCC 483, para 6 : 1989 SCC (Tax)
464; State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249,
para 16; State of Punjab v. Bhatinda District Coop. Milk Producers
Union Ltd., (2007) 11 SCC 363.] This prevents miscarriage of
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justice, misuse and abuse of the power as well as ensures that the
violation of the provisions are checked and penalised without delay,
thereby effectuating the purpose behind the enactment.”
VIII. CALL BOOK AND THE SECTION 28 REQUIREMENTS
79. We also bear in mind the conceded position of the respondents
having woefully failed to adhere to the procedure contemplated under
the First Proviso to Section 28(9) and which enables the proper officer
to seek a further extension of time dependent on whether proceedings
were referable to clause (a) or (b) of Section 28(9). As was noticed by
us hereinabove, both in respect of cases falling under Section 28(1) or
28(4), the proper officer stood enabled by statute to seek further
extension of time. Additionally, and if the respondents were to resort to
sub-section (9-A), they were statutorily obliged to inform the importer
of the reasons on account of which they were unable to conclude the
adjudication. Upon such information and notice being provided, the
provisions of sub-section (9) would have ceased to apply and it would
have been open for the proceedings to remain suspended till the
reasons, which had prompted the respondents to place proceedings in
abeyance by virtue of sub-section (9-A), had ceased to exist.
80. The disclosures made in this batch, however, establish that the
respondents in each case, adopted a repetitive exercise of placing
matters in the call book, retrieval therefrom, followed by those matters
being transferred back to that book yet again. These actions appear to
have been taken mechanically and casually based solely on the
directions of the Board and without any application of mind to the facts
obtaining in individual cases or the formation of requisite opinion as
contemplated under Section 28(9-A).
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81. As per the writ petitioners, the action of placement of matters in
the call book was not preceded by any notice or information that may
have been provided. In Nanu Ram Goyal I, this Court had an occasion
to address the issue of whether the respondents were obligated to
inform the petitioner that the SCN was being placed in the “call book”
as per the Board’s circulars. The Court noted that while placing matters
in the “call book” was permissible, that action would have to be
preceded by the assessee being placed on due notice. In that decision, it
was observed as hereunder:
“34. It is also relevant to note that the petitioner was provided no
information that the impugned show-cause notice has been placed in
the, “call book”. Even if it is accepted that it is permissible for the
respondents to place the matter in the “call book” which this Court
does not-it was necessary for the respondents to have communicated
the said fact to the petitioner. There are a series of decisions rendered
by the Bombay High Court restraining the respondents from
continuing with the proceedings in cases where the matters were
placed in the “call book” without any information to the assessee. It
is apposite to refer to a few of those decisions.
xxxx xxxx xxxx
36. In ATA Freight Line (I) (P) Ltd. v. Union of India [ATA Freight
Line (I) (P) Ltd. v. Union of India, (2023) 25 GSTR-OL 181 : 2022
SCC OnLine Bom 648] , the Bombay High Court in somewhat
similar circumstances where the show-cause notice had been kept in
abeyance for more than seven to eleven years allowed the petition.
The Bombay High Court also noticed that if the petitioner was
informed about the show-cause notice being kept in the “call book”,
the petitioner would have applied for an appropriate relief by filing
for appropriate proceedings. It was not expected for the assessee to
preserve evidence and records for a long period of time. It is material
to note that the Revenue had filed a special leave petition in Union of
India v. ATA Freight Line (I) (P) Ltd. [Union of India v. ATA
Freight Line (I) (P) Ltd. SLP(C) No. 003240 of 2023, dt. 10-2-2023]
before the Supreme Court, which was dismissed by an order dated
10-2-2023. The said order reads as under:
“Delay condoned.
Having heard learned counsel for the parties at length, we
do not find any good ground to interfere with the impugned
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judgment and order passed by the High Court. Accordingly,
the special leave petition is dismissed.
Pending application(s), if any, stand disposed of.””
82. In ATA Freight Line (I) (P) Ltd. vs. Union of India 35, the
Bombay High Court had an occasion to examine the delay in
completion of adjudication with matters being placed in the call book
for 7 to 11 years without any intimation to the assessee. The Court had
noted that the respondents had failed to notify the petitioner about the
transfer or provide any updates, causing prejudice and hardship. It
emphasized that such a delay was unreasonable, as the petitioner could
have sought relief earlier if informed. The High Court made the
following pertinent observations:
“19. It is an admitted position that respondent No. 2 did not fix any
date of hearing of those show-cause notices or did not send any other
communication to the petitioner informing as to why the said show-
cause notices were not being heard. Respondent No. 2 informed the
petitioner for the first time on April 12, 2021 that the show-cause
notices were transferred to call book by invoking the circulars
referred to and relied upon in the earlier paragraphs of the judgment.
20. The first letter was addressed by respondent No. 2 on 5th /7th
June 2021 in response to the letter dated February 23, 2021
addressed by the petitioner seeking a copy of closure report, if any.
21. A perusal of the said reply from respondent No. 2 indicates that
the only information provided to the petitioner was that files were
transferred to call book as per the circulars issued by the Central
Board of Excise and Customs which has been revised from time to
time. A copy of the Circular dated April 26, 2016 was enclosed by
respondent No. 2 along with the said letter for reference of the
petitioner.
22. A perusal of the said Circular dated April 26, 2016 relied upon
by respondent No. 2 indicates that by the said circular, respondent
No. 1 clarified that the cases where (i) the issue involved has either
been decided by the Supreme Court or the High Court and such
order has attained finality or, (ii) Board has issued new instruction or
circular clarifying the issue involved, subsequent to issue of the35 2022 SCC OnLine 648
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order to transfer the case to the call book would be taken out of call
book and adjudicated. The said circular also provides for various
eventualities where file can be transferred to call book already
referred to in the earlier paragraph of this judgment.
23. Neither the affidavit-in-reply nor the arguments advanced by the
learned counsel for the respondents indicated that the petitioner was
at any point of time informed about the transfer of file relating to the
show- cause notices in question to call book prior to the date of the
petitioner’s letter asking for closure report.
xxxx xxxx xxxx
26. This court in case of Bombay Dyeing and Manufacturing
Company Limited v. Dy. Commissioner of CGST & CX (supra)
after adverting to the judgment in cases of Parle International Ltd. v.
Union of India (supra) and Reliance Industries Ltd. v. Union of India
(supra) has held that when a show-cause notice is issued to a party, it
is expected that the same would be taken to its logical conclusion
within a reasonable period so that a finality is reached. If the
respondent would have informed the petitioner about the said show-
cause notice having been kept in call book in the year 2005 itself, the
Petitioner would have immediately applied for appropriate reliefs by
filing the appropriate proceedings. It is held that it is not expected
from the assessee to preserve the evidence/record intact for such a
long period to be produced at the time of hearing of the show-cause
notice.
xxxx xxxx xxxx
29. In our view, since the respondents were totally responsible for
gross delay in adjudicating the show-cause notices issued by the
respondents causing prejudice and hardship to the petitioner and
have transferred the show-cause notices to call book and kept in
abeyance without communication to the petitioner for more than 7 to
11 years, the respondents cannot be allowed to raise alternate remedy
at this stage. Be that as it may, no order has been passed by the
respondents on the said show-cause notices. The question of filing
any appeal by the petitioner therefore did not arise.”
83. The respondents also appear to have clearly failed to even
undertake a periodic review of pending proceedings or make even a
feeble attempt to accord closure to proceedings that had been pending
for decades. The Board, in its Instruction dated 18 November 2021 had
duly underscored the requirement of the concerned authorities
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intimating noticees’ regarding the placement of their proceedings in the
call book and undertaking a periodic reviews of the matters placed in
abeyance. The said Instruction read as follows:
“F.No. CBIC-90206/1/2021-CX-IV Section-CBEC
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
****Room No. 244 C. North Block,
New Delhi, dated: 18 November, 2021INSTRUCTIONS
To
1. All Principal Chief/ Chief Commissioners of CGST, Central
Excise and Service Tax;
2. All Principal Commissioners/ Commissioners of CGST, Central
Excise and Service Tax;
3. The Director General of DGGI;
Madam/ Sir,
Subject: Audit para no. 5.1 to 5.18 of chapter V of Audit report
no. 01 of 2021 on SCNs and adjudication process in CBIC –
regarding.
Audit para no. 5.1 to 5.18 of chapter V of Audit report no. 01 of
2021 on Show Cause Notices and adjudication process in CBIC has
made certain observations regarding issuance of SCNs and disposal
of adjudication matters including call book cases.
2. Briefly, the Audit has pointed that
(i) Draft SCNs have been found pending for issuance.
(ii) There is inordinate delay in adjudication.
(iii) Adjudication orders have not been issued within
stipulated period after completion of personal hearings.
(iv) Periodical review of call book cases has not been done.
(v) In certain cases, the records/files pertaining to
adjudication have not been produced before Audit Party.
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3. With the introduction of GST law, Board has consistently
expressed its desire and resolve that it is of utmost importance to
dispose the legacy matters related to Central Excise and Service
Tax regime as expeditiously as possible. In this regard, Board has
issued instructions from time to time regarding disposal of legacy
issues such as issuance of Show cause notice, adjudication of
SCNs, review of call book cases, etc.
4. However, in view of the observations of Audit, Board desires
that the following directions must be strictly adhered to:
4.1 Once the investigation is over/analysis is done and draft show
cause notice is prepared, SCN should be issued without any delay,
without waiting for the last date of issuance of SCN.
4.2 Attention is invited to sub-section (11) of section 11A of
Central Excise Act, 1944 read with sub-section (4B) of section 73
of the Finance Act, 1994 which stipulates that SCNs issued in
normal cases should be adjudicated within six months in respect of
Central Excise (CE) & Service Tax (ST), and SCNs issued
involving extended period should be adjudicated within two years
relating to CE and one year relating to ST where it is possible to do
so. Board desires that the time limits mentioned in relevant Acts
must be adhered to.
4.3 On the issue of delay in issuance of adjudication order within
stipulated period of one month after final personal hearing has been
conducted and non-recording of reason for the delay, reference is
invited to para 14.10 of the Master circular No. 1053/02/2017-CX
dated 10.03.2017 wherein, inter alia, it has been stated that:
“14.10 Issue and Communication of order: In all cases
where personal hearing has been concluded, it is
necessary to communicate the decision as expeditiously
as possible but not later than one month in any case,
barring in exceptional circumstances to be recorded in
the file. The order is required to be communicated to the
assessee in terms of provisions of Section 37C of the
CEA, 1944.”
Audit has observed that in certain cases, adjudication orders
have been issued beyond stipulated period and no justification has
been recorded in the file explaining delay. It is, therefore, reiterated
that timelines of completing adjudication process must be followed
and in exceptional cases of delay beyond stipulated period, reasons
for the delay must be recorded on file.
4.4 Audit in its report has also pointed incidences of periodical
non- review of Call Book cases, non/delayed retrieval of SCNs
from Call Book, incorrect transfer of SCNs to Call Book, resulting
in irregular retention of cases in Call Book.
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4.4.1 Kind attention is invited to Board’s D.O letter F. No.
101/2/92- CX.3 dated 04.03.1992 wherein while indicating the
categories of the cases to be transferred to call book, it was directed
that a case should be transferred to call book only with the approval
of Commissioner. Further, the Commissioners were instructed to
review the Call book cases on monthly basis. These instructions
have subsequently been reiterated vide Circular No. 385/18/98-CX,
dated 30-3-1998 and Circular No. 719/35/2003-CX dated
28.05.2003. Audit has pointed out certain instances where Call
book cases are not reviewed periodically, due to which, there are
instances of delay in retrieval of Call book cases. It is therefore,
reiterated that instructions in above mentioned D.O letter and
subsequent instructions/circulars must be adhered to and Pr.
Commissioners/Commissioners must review Call book cases on
monthly basis. Non-adherence to these instructions shall be viewed
seriously.
4.4.2 Audit has also pointed certain instances where noticees are
not intimated about transfer of SCNs to Call book. Attention is
invited to para 9.4 of the instructions issued vide Master circular
No. 1053/02/2017-CX dated 10.03.2017 which reads as under:
“9.4 Intimation of Call Book cases to noticee: A formal
communication should be issued to the noticee, where
the case has been transferred to the call book.”
4.4.3 Therefore, it should be ensured that instructions issued vide
Master circular No. 1053/02/2017-CX dated 10.03.2017 in this
regard are adhered to.
4.4.4 Further, it has been pointed that in contravention to the
Board’s D.O letter dated 04.03.1992, there are instances where
prior approval is not taken from the Commissioner before
transferring the case to Call book. In this regard, the instructions
issued by Board vide above mentioned D.O letter dated 04.03.1992
are reiterated. The cases must be transferred to call book only with
the approval of Commissioner as stipulated earlier. A
comprehensive one-time review of all cases may also be carried out
in this regard and necessary action taken.
4.4.5 For proper handling of Call book cases, instructions have
been issued by Board from time to time such as those mentioned in
Circular No 1023/11/2016-CX dated 08.04.2016 and circular No.
1053/02/2017-CX dated 10.03.2017. Such instructions issued from
time to time may be gone through and followed without fail.
4.5 Audit has also pointed out cases/instances where the case
files/records pertaining to adjudication have not been produced
before audit.
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4.5.1 In Audit para 5.16 of Chapter-V of Audit report no. 01 of
2021 it has been stated that “Despite Board’s Instructions vide DO
letter F. No. 232/Misc DAPs/2018-CX-7 dated 26.04.2018
regarding cooperation with the C&AG during audit, by providing
complete and comprehensive information, the department did not
produce the complete records such as DSCN files, waiver of SCN
files, SCNs pending for adjudication, adjudication cases, Call
Book, transfer of records due to GST and List of total records.”
4.5.2 In this regard it may be noted that vide aforesaid Chairman’s
D.O letter dated 26.04.2018, it was directed that full cooperation
with the C&AG team would be provided by providing complete
and comprehensive information available with the concerned
Commissionerate. Any feeble excuses in this regard would not be
entertained.
4.5.3 In this regard reference is invited to Circular dated
29.04.1988 issued from F.No. 240/15/88-CX.7 wherein it has been
communicated that the files leading to passing of
adjudication/appellate orders need not be made available to the
audit parties of the Accountant General. It may be seen that the
above-mentioned Circular was issued keeping in view the basic
premise that audit parties cannot question the decision taken by the
judicial or quasi-judicial authority. The said circular thus needs to
be read in proper context that sharing of records with audit parties
does not interfere with the judicial/quasi-judicial proceedings. The
audit parties may require the production of the records for ensuring
that due procedure is followed or otherwise. Therefore, the request
of the Audit for production of records must be acceded to.
4.6 Attention is invited to the instructions issued by the Board vide
Circular No. 716/32/2003-CX., dated 23-5 2003 wherein the
Commissioners and Chief Commissioners have been directed to
analyze the reasons for pendency of adjudication cases and
strengthen the monitoring system. These instructions have also
been reiterated from time to time. In this regard MPR DPM-ST-1A
and DPM-CE-1A of the Monthly Progress Report (MPR)
incorporate information relating to adjudication of pending cases
and their disposal. Accordingly, Pr. Chief Commissioner/ Chief
Commissioner &Pr. Commissioner/Commissioner must undertake
periodic review of adjudication of pending cases.
5. Difficulty experienced, if any, in implementing the circular
should be brought to the notice of the Board. Hindi version will
follow.
(Varun Kumar Singh)
Under Secretary to Govt. of India
Tel No. 011-23095537″
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84. In Tata Steel Limited vs. Union of India & Ors., 36 the
petitioner therein had challenged the revival of adjudication
proceedings on a SCN issued in 1993 which had been kept in the call
book for nearly 29 years. The Jharkhand High Court examined whether
the conditions outlined in the Board’s circulars for transferring a case to
the call book were met and ultimately found that the respondents had
failed to provide evidence of periodic review of cases as was required
by those circulars. The High Court while criticizing the excessive delay
and lack of communication to the petitioner regarding the SCN being
placed in the call book, questioned the very legality of proceedings
being kept pending for such long spells. Commenting adversely on such
inaction, the High Court held:
“8. The conditions stipulated by CBIC circular stipulate 4
contingencies under which an SCN can be transferred to the call
book: (a) cases in which department has gone in appeal to the
appropriate authority, (b) cases where injunction has been issued by
Supreme Court / High Court/CEGAT etc.; (c) cases where audit
objections are contested; (d) cases where the Board has specifically
ordered the same to be kept pending and to be entered into the call
book. It is submitted that the department has not gone in appeal
against the order of the learned CEGAT and therefore the first
condition is not fulfilled. So far as the conditions relating to grant of
injunction mentioned under Clause B is concerned, there was no
matter sub judice after the judgment of the Apex Court in Civil
Appeal No. 3973 of 2001 dated 5th May 2004. The respondents in
their counter affidavit have also not given any explanation as to why
even after 2004 the proceedings were not revived for adjudication of
the impugned SCN till December 2022. The instant case also does
not relate to an audit objection or a direction of the Board to keep the
SCN in a call book. It is further submitted that as per the CBIC
circulars, the case can be referred to call book only after prior
approval of Jurisdictional Commissioner. In the entire counter
affidavit the respondents have not annexed or brought on record any
document to show that necessary approval was taken from the
Jurisdictional Commissioner. It is further pointed out from the CBIC36
W.P.(T) 308/2023 dated 14 February 2024
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circulars issued from time to time such as Circular Nos. 385/18/98-
CX dated 30th March 1998, 719/35/2003-CX dated 28th May 2003
and 1053/2/2017-CX dated 10th March 2017 that the competent
authorities have been mandated to carry out periodic monthly review
of SCNs kept in a call book. The respondents have not given a
semblance of an answer as to whether any such periodical review
was carried out by the competent authority. Referring to the Circular
dated 10th March 2017, Clause 9.4 it is also submitted that whenever
a case has been transferred to the call book a formal communication
should be issued to the noticee. It is submitted that various courts
have disapproved of such an approach to revive an adjudication
proceedings after an inordinate delay in view of the conditions
stipulated under Section 11 A (11) of the CEA. The expression ‘if it
is possible to do so’ used in Section 11A(11) cannot by any stretch
of imagination be extended for a period of 29 years to adjudicate
upon such a show-cause notice. Any such stipulation in a statute,
which does not prescribe an outer period of limitation can be
understood as laying down only a reasonable period of limitation
which cannot be extended to an infinite period such as in the present
case. It is submitted that the records relating to the said period are
not available in the office of the petitioner. The officers and
employees who dealt with the matter have also left the company
upon superannuation or otherwise. That is why various courts have
castigated such an approach on the part of the excise authorities or
the customs authorities under the relevant statutes in adjudicating
show cause notices after inordinate delay of nine years or more in
individual cases. Reliance is placed upon the decision of the Bombay
High Court in the case of Eastern Agencies Aromatics Private
Limited Vs. Union of India & Ors. Writ Petition (L) No. 30629 of
2022 [Bom (HC)] dated 24th November 2022; in the case of
Harkaran Dass Vedpal Vs. Union of India, 2019 (368) E.L.T. 546 (P
& H) and also a decision of a learned Single Bench of this Court in
the case of Vijay Kumar Sinha Vs. Vinoba Bhave University through
its Vice-Chancellor & Ors., 2020 SCC Online Jhar 861 which of
course, does not relate to a tax matter. Learned counsel for the
petitioner has also referred to the judgment of the Apex Court in
Special Leave to Appeal (Civil) No. 12376 of 2022 passed in the
case of Commissioner GST and Central Excise and Another Vrs.
M/s. Shree Baba exports wherein such a view has been affirmed.
Based on these submissions learned Senior Counsel for the petitioner
has prayed that the impugned show cause notice be quashed. He has
also referred to Rule 10 (3) of the Central Excise Rules 2002 which
require an assessee to keep the relevant records up to a maximum
period of five years. Rule 53(2) of the Central Excise Rules 1944
also contained a similar prescription of outer limit for maintaining
the records. It is submitted that any adjudication on the impugned
show cause notice dated 9 th December 1993 after 29 years at this
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stage would be illegal and in contravention of the mandate of Section
11A(11) of the CEA 1944.
xxxx xxxx xxxx
16. Falling back upon the CBIC circular, it is contended that the
competent authority i.e. the Commissioner, Central Excise has
revived the proceedings and issued a notice of personal hearing to
the petitioner since these SCNs/SODs were kept in call book on
account of the matter pending before different courts including the
Apex Court. However, on being specifically asked learned counsel
for the respondent has not been able to dispute or indicate any
explanation from the stand of the respondents as reflected in the
counter affidavit as to whether there was any basis for keeping the
SCN in call book after the decision rendered by the Apex Court on
5th May 2004 in Civil Appeal No. 3973 of 2001. There are no
materials enclosed to the counter affidavit which also goes to show
that the prior approval of the jurisdictional commissioner was taken
before keeping the SCN into the call book. It is also not shown from
the counter affidavit whether the petitioner was ever communicated
of such a decision to keep the case in the call book all along and
even after disposal of the Civil Appeal No. 3973 of 2001 vide
judgment dated 5th May 2004. However, learned counsel for the
respondent submits that the petitioner may be relegated to participate
in the adjudication proceedings and if aggrieved, invoke the
alternative remedy of appeal before the appellate authority i.e.
learned CESTAT.
xxxx xxxx xxxx
18. The facts as borne out from the pleadings on record need no
repetition. The impugned show cause is of 9th December 1993
(Annexure-5) issued upon the petitioner asking them to show cause
as to why the appropriate excise duty amounting to Rs.
1,67,42,847.30 be not imposed upon him under the provisions of
Rules 9(B), 52A, 173(B), 173(F) and 173(G) of Central Excise
Rules, 1944 and Section 11A of the CEA, 1944 alleging less
payment of duty due to misclassification. The respondents had kept
the impugned show cause notice and ten other SCNs as indicated in
the chart above in the call book on the ground that the matter was
subjudice. However, from the pleadings on record and also from the
averments made in the counter affidavit, it appears that none of the
conditions as enumerated in the CBIC circular / guidelines relied
upon by the respondents and also by the petitioner stood satisfied for
transferring the matter to the call book. It is not a case where the
department had gone in appeal before the learned CEGAT or before
the Apex Court, rather it was the petitioner who twice went up to the
Apex Court in Civil Appeal No. 782 of 1987 against the first SCN
dated 8th February 1984 and in Civil Appeal No. 3973 of 2001
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against the SCN dated 13th August 1990. The instant SCN pertains
to the period June 1993 to November 1993 and is of 9th December
1993. Learned counsel for the respondents has fallen back on Clause
2 of the condition stipulated in the CBIC circular as referred to in
para 11 of their counter affidavit but he has not been able to show
that at any point of time there was a stay in proceeding upon the
impugned show cause notice by either the CEGAT or the High Court
or the Hon’ble Apex Court. Even if by stretching the argument to the
extent that the show cause notice dated 13th August 1990 was
subjudice before the Apex Court in Civil Appeal No. 3973 of 2001,
there is no basis or explanation on the part of the respondents to have
kept the show cause notice in its call book without proceeding for its
adjudication after the judgment rendered in that case by the Apex
Court on 5th May 2004. None of the other two conditions as
indicated by the respondents at Clause 3 and 4 quoted above also
stand satisfied in the present case. The respondents have not
enclosed any document to show that prior approval of the Collector
of excise was taken before keeping the case in the call book. There
seems to be no reference of any periodic review of the call book,
though the relevant CBIC circulars such as the circular dated 30th
March 1998 and 20th May 2003 specifically required the
Commissioners to review the cases transferred to call books on a
monthly basis in circumstances where the department was
confronted with a situation where provisional assessment cases were
kept pending for several years. The extract of the relevant circulars
are quoted here under:-
In circular dated 30th March 1998 :
“While the Board had issued instructions to Commissioners
to review the cases transferred to call books on a monthly
basis, it is observed that no such review is actually being
done. (Board’s DO Letter F.No.101/2/92-CX.3, dated 4th
March 1992 and Board’s Circular No.53/90-CX.3, dated
6.9.1990). 2. The Board vide its < > specified the following
categories of cases which can be transferred to call book
viz.:
1. Cases in which the Department has gone in appeal to the
appropriate authority.
2. Cases where injection has been issued by Supreme
Court/High Court/CEGAT, etc.
3. Cases where audit objections are contested. 4. Cases
where the Board has specifically ordered the same to be
kept pending and to be entered into the call book.”
In circular dated 28th May 2003 :
“3. It is further directed that a one-time comprehensive
review of all the pending call book cases will be done by
respective CCEs. The Chief Commissioner may monitor
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such review periodically in their respective zones. The
progress report of the call book cases should continue to
mention in the MTR as well as in the monthly statements of
the progress achieved in “Key Result Areas”.
In circular dated 10th March 2017 :
“9.4 Intimation of Call Book cases to notice: A formal
communication should be issued to the notice, where the
case has been transferred to the call book.””
IX. SUMMATION
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. Ultimately it is
incumbent upon the authority to establish that it was genuinely
hindered and impeded in resolving the dispute with reasonable speed
and dispatch. A statutory authority when faced with such a challenge
would be obligated to prove that it was either impracticable to proceed
or it was constricted by factors beyond its control which prevented it
from moving with reasonable expedition. This principle would apply
equally to cases falling either under the Customs Act, the 1994 Act or
the CGST Act.
86. When we revert to the facts that obtain in this batch, we find that
the respondents have clearly failed to establish the existence of an
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insurmountable constraint which operated and which could be
acknowledged in law as impeding their power to conclude pending
adjudications. In fact, and to the contrary, the frequent placement of
matters in the call book, the retrieval of matters therefrom and transfer
all over again not only defies logic it is also demonstrative of due
application of mind quite apart from the said procedure having been
found by us to be contrary to the procedure contemplated by Section
28. The respondents have, in this regard, failed to abide by the
directives of the Board itself which had contemplated affected parties
being placed on notice, a periodic review being undertaken and the
proceedings having been lingered unnecessarily with no plausible
explanation. The inaction and the state of inertia which prevailed thus
leads us to the inevitable conclusion that the respondents clearly failed
to discharge their obligation within a reasonable time. The issuance of
innumerable notices would also not absolve the respondents of their
statutory obligation to proceed with promptitude bearing in mind the
overarching obligation of ensuring that disputes are resolved in a timely
manner and not permitted to fester. Insofar as the assertion of the
assessees’ seeking repeated adjournments or failing to cooperate in the
proceedings, it may only be noted that nothing prevented the
respondents from proceeding ex parte or refusing to reject such requests
if considered lacking in bona fides.
87. We are further constrained to observe that the respondents also
failed to act in accord with the legislative interventions which were
intended to empower them to pursue further proceedings and take the
adjudicatory process to its logical conclusion. We have in the preceding
paragraphs of this decision taken note of the various statutory
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Signing Date:10.12.2024
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amendments which were introduced in Section 28 and were clearly
intended to ratify and reinforce the jurisdiction which the Legislature
recognised as inhering in them. The above observations are, of course,
confined to those cases to which the Second Proviso placed in Section
28(9) would not apply. The Second Proviso where applicable would in
any case deprive the respondents of the right to continue a pending
adjudication or frame a final order once the terminal point constructed
by statute came into effect.
X. OPERATIVE DIRECTIONS
88. Accordingly, and for all the aforesaid reasons, we allow the
present writ petitions and quash the SCNs as well as any final orders
that may have come to be passed and which stand impugned in this
batch of writ petitions.
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
DECEMBER 10, 2024/kk/DR
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Signing Date:10.12.2024
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Appendix-A
CHART ON MATTER-WISE DETAILS
IN RE: TIMELINE FOR ADJUDICATION PROCEEDINGS
S.No. Matter Date of Date of Details of Call Book Placement / Details of Personal Adjournments and other Impact of
Details Show Adjudication Board Instructions Hearings related details the
Cause Order Amendment
Notice Act of 2018
(Act No. 13)
[Pre/Post]
1. City Paper v. 22.12.2006 Pending • Impugned SCN was Personal Hearings in the • 20.11.2023 – the Pre
Union of transferred to the call book matter for the Petitioner Petitioner sought 8
India and w.e.f. 29.06.2016 in view of were held on the following weeks’ time to file
Ors. Board’s instruction issued vide dates: reply.
F.No. 276/104/2016-
WP(C) CX.8A(Pt.) dated 29.06.2016. 1. 17.04.2012 • It is matter of record
16163/2023 2. 13.10.2014 that the Petitioner
• Impugned SCN was taken out 3. 02.12.2020 repeatedly requested
from the call book on 4. 11.08.2023 for RUDs despite such
03.01.2017 in view of Board's RUDs having been
instruction issued vide F.No. It is matter of record that supplied to them -
276/104/2016-CX.8A(Pt.) the Petitioner repeatedly Ref. Annexure A-6 at
dated 03.01.2017. requested for RUDs which p. 33 of the Counter
led to substantial delay in Affidavit.
• Impugned SCN was the personal hearings being
transferred to the call book held. • The repeated demands
w.e.f. 03.11.2017 in view of for RUDs, which
Board's instruction issued vide contributed
F.No. 437/143/2009-Cus.IV substantially to the
dated 03.11.2017. delay in the
adjudication of the
SCN, have been
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Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 1 of 52
• Impugned SCN was taken out elaborated in the list of
from the call book on dates encapsulated in
03.05.2019 in view of the the Counter Affidavit
Office Memorandum issued at pp. 2-10.
vide F.No. 437/143/2009-
Cus.IV dated 03.05.2019.
• Impugned SCN was
transferred to the call book on
17.03.2021 in light of the
ruling of the Supreme Court in
Canon India Private Limited v.
Commissioner of Customs and
Board's Instruction No.
04/2021 - Customs dated
17.03.2021.
• The impugned SCN was taken
out of the call book on
01.04.2022 in view of the
validation owing to Section 97
of the Finance Act, 2022.
2. Ashish Jain 20.12.2012 Pending 1. All RUDs were given to all Noticees alongwith SCN in the form of CD. Moreover, vide Pre
and Ors v. letter DRI F.No 23/13/2011-DZU dated 31.01.2013, Petitioners were informed by DRI
ADG, DRI that they had already been supplied RUDs in CD alongwith SCN, but they were again
and Anr. intimated that they may collect another set of RUDs from DRI office on any working day
between 2pm-3pm
WP(C)
12425/2023 2. Vide CBEC order dated 31.01.2013, the SCN had been assigned to the Commissioner of
Customs, ICD-Tughlakabad, New Delhi for the purposes of adjudication. The same was
brought to the knowledge of the Commissioner of Customs, ICD-Tughlakabad vide DRI
letter F.No. 23/13/2011-DZU dated 11.02.2013.
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Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 2 of 52
3. ADG (Adj) DRI, New Delhi was appointed as common adjudication authority vide
Notification No.08/2016-Customs (MT) dated 12.01.2016
4. Vide C.No VIII/ICD/6/TKD/Exp/Adj/CAA/08/2015/Pt dated 14.06.2016, the
Commissioner of Customs. ICD Tughlakabad informed the ADG (Adjudication), DRI
regarding transfer of Adjudication files pursuant to him being appointed as Common
Adjudicating Authority.
5. 21.07.2016 – Case was transferred to the call book subsequent to the decision of Hon’ble
High Court of Delhi in M/s Mangli Impex vide order dated 03.05.2016 and DGRI letter
DRI/HQRS/24-C/ADJN/03-2016 dated 14.07.2016.
6. 30.01.2017 – Case was retrieved from the call book with reference to Board’s letter DOF
No. 437/143/2009-CUS IV (Part II) dated 06.01.2017.
7. 01.03.2017- Personal hearing was given to the Noticees.
8. Noticees demanded RUDs and adjournments for personal hearing, SIO(Adj.), The SIO
vide their letter of even no 2453 dated 23.05.2017 informed the SIO (Adj.), DRI that RUDs
had already been supplied in the form of CD along with SCN and party was also informed
vide letter of even no. dated 31.01.2013 to collect another set of RUD
9. This matter was taken up with DRI headquarters on 11.12.2017 and 07.08.2018 to transfer
the case in call book with various decisions of Hon’ble courts giving different decisions.
The case was not further taken up for adjudication.
10. 2020-21:- Lockdown in the country due to COVID Pandemic
11. On 03.06.2021, the case was transferred to call book.
12. Personal hearing was given to notices on 12.07.2023 and 19.07.2023
13. Next personal hearing was given on 23.08.2023
14. Next personal hearing was given on 19.10.2023
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Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 3 of 52
3. Echo 25.02.2009 23.01.2024 Placed in call book on 29.06.2016, 22.11.2012, 4.12.2012, – Pre
International taken out from call book on 11.10.2013, 13/14.11.2013,
and Ors. v. 03.01.2017, placed in call book on 19.12.2013 AND
Principal 3.11.2017, taken out from call 22.08.2023
Commission book on 03.05.2019, placed in call
er of book on 17.03.2021, taken out
Customs from call book on 01.04.2022
Import and
Anr.
WP(C)
3705/2024
4. Dolphin 25.02.2009 23.01.2024 Placed in call book on 29.06.2016, 22.11.2012, 4.12.2012, – Pre
Printers and taken out from call book on 11.10.2013,
Anr. v. 03.01.2017, placed in call book on 13/14.11.2013, 19.12.2013
Principal 3.11.2017, taken out from call AND
Commission book on 03.05.2019, placed in call 22.08.2023
er of book on 17.03.2021, taken out
Customs from call book on 01.04.2022
Import and
Anr.
WP(C)
3737/2024
5. Bhambri 25.02.2009 23.01.2024 Placed in call book on 29.06.2016, 22.11.2012, 4.12.2012, Pre
Printing taken out from call book on 11.10.2013,
Press and 03.01.2017, placed in call book on 13/14.11.2013, 19.12.2013
Ors. v. 3.11.2017, taken out from call AND
Principal book on 03.05.2019, placed in call 22.08.2023
Commission book on 17.03.2021, taken out
er of from call book on 01.04.2022
Customs
Signature Not Verified
Digitally Signed
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Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 4 of 52
Import and
Anr.
WP(C)
3753/2024
6. Rhea 25.02.2009 23.01.2024 Personal Reply of the Noticees and Department’s Pre
International
Hearing Correspondence
and Anr. v.
Principal Date
Commission
26.05.2009 – Letter sent to R-2 requesting to write to
er of
Customs CBIC to appoint Common Adjudicating Authority
Import and
22.3.2010 – R-1 appointed as Common Adjudicating
Anr.
Authority.
WP(C)
3755/2024 Advocate submitted letter dated 21.09.2010 and
23.09.2010 & requested to adjourn the personal hearing,
26.10.2010
Peitioners appeared on 26.10.2010 for personal
hearing and requested for cross examination of
Chartered Engineer.
24.09.2012 On 24.09.2012, DRI (DZU) informed that copies of
relied upon documents have been supplied to all
noticees.
22.11.2012 Advocate of co-Noticees requested for adjournment.
Advocate of co-Noticees stated that Final Reply will
17.12.2012 be submitted after receipt of valuation reports and
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Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 5 of 52
completion of cross examination of the Chartered
Engineer. Copies of valuation reports were sent on
20.12.2012 to co-Noticees. Some co-noticees again
asked for RUDs and some asked for more time to
file Reply
Petitioner requested for examination of original
overseas enquiries made by the DRI.
11.10.2013 Personal Hearing
took place.
13.11.2013 & Advocate reiterated demand of original overseas
14.11.2013 enquiry
19.12.2013 Adv appeared before the adjudicating authority and
DRI official appeared along with required
documents.
29.06.2016 SCN was transferred to call book in light of Delhi
High Courts’ Judgement in Mangli Impex.
3.1.2017 (Taken out of Call Board’s Instruction issued vide F No. 276/104/2016-
Book) CX.8A(Pt.) dated 03.01.2017.
3.11.2017 (Transfer to Call Board's Instruction issued vide F No. 437/143/2009-
Book) Cus.IV dated 03.11.2017
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Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 6 of 52
1.5.2019 (Taken out of Call Office Memorandum issued vide F No.
Book) 437/143/2009-Cus.IV dated 03.05.2019
2020-21 Lockdown in the country due to COVID Pandemic
17.03.2021 (Transfer to Call In light of judgement of Hon'ble Supreme Court in
Book) M/s Cannon India Pvt. Ltd and the Board's
Instruction No. 04/2021-Customs dated 17.03.2021.
25.07.2023 (Taken out of Call in view of the validation in Section 97 of the Finance
Book) Act, 2022. PH was also given on 22.8.2023 to all the
Noticees.
22.08.2023 Co-noticees again asked for documents
7. Acry 30.09.2008 Pending 1. 17.03.2010 – Hearing scheduled by Commissioner of Customs (Import), Nhava Sheva, but Pre
Monomers the Petitioners stated that some documents had not been received, even though this was
India Pvt. However, the false.
Ltd. & Ors. v. Petitioner
ADG, DRI cannot
and Anr. object to 2. Despite this, in the spirit of natural justice, DRI again sent soft copy as well as hard copy
delay in of the RUDs by even No 5134 dated 18.12.2012 as well as by letter dated 29.04.2014
WP(C) adjudication
13509/2023 as he himself 3. 18.02.2011 – The Hon’ble Supreme Court in Commissioner of Customs vs Sayed Ali [2011
has asked to (265) ELT 17] held that DRI officers to not be proper officers for issuing the demand
keep the notice. However, Customs Act was amended by the Legislature and various
matter in Notifications/Circulars, like CBIC Circular 44/2011-Cus dated 23.09.2011 and CBIC
abeyance a
Notification No 40/2012-Cus (N.T) dated 02.05.2012 assigning various officers of
number of
times, such Customs, including the DRI, the functions of the “Proper Officers” as mentioned in the
as on Customs Act.
02.06.2014
and 4. Scheduled for hearing in June 2014, but Petitioners again asked for RUDs to cause
02.06.2017 deliberately delay.
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Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 7 of 52
5. Petitioner requested the Adjudicating Authority to keep the Show Cause Notice in
abeyance till they receive the co-relation chart even though it was never a part of RUDs
as a delaying tactic.
6. By letter dated 02.06.2014, Petitioner himself has requested to keep the matter in abeyance
7. Respondent No 2 was appointed as the common adjudicating authority by CBIC
Notification No 81/2016-Customs(N.T) dated 06.06.2016.
8. After the judgement of the Hon’ble Delhi High Court in WP(C) 441/2013 in the matter of
M/s Mangli Impex Ltd, SCN was transferred to call book w.e.f 29.06.2016 and taken out
from the call book- CBICs Instruction vide F No. 276/104/2016-CX.8A(Pt.) dated
03.01.2017.
9. Personal Hearing letter to all the noticees was issued on 02.06.2017. Petitioner requested
to keep the SCN in abeyance in view of M/s Mangli Impex Ltd.
10. Personal Hearing on 29.06.2017-Petitioner wanted to wait for co-relation chart (not part
of RUDs)
11. 03.11.2017- transferred to call book.
12. 03.05.2019 – taken out of call book.
13. Personal Hearing Letters dated 09.09.2019- Petitioners sought two months’ time to submit
reply.
14. Personal Hearing Letters dated 27.09.2019 was issued to all notices.
15. Personal hearing held on 19.12.2019, wherein the petitioner asked for various documents.
16. In 2020-21, there was lockdown in the country in view of the COVID Pandemic.
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Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 8 of 52
17. After the Hon’ble Supreme Courts order in Canon India Pvt Ltd vs Commissioner of
Customs 2021(376) ELT 3, the SCN was transferred to call book w.e.f 17.03.2021 and
taken out from the call book in light of CBIC Circular No. 07/2022-Customs dated
31.03.2022
18. Issued letter on 13.07.2023 for Personal Hearing to be held on 11.08.2023. However, on
04.08.2023- the Petitioner once again said that all documents are not available with them.
In view of the above, it is apparent that Respondents have always been trying to complete
the adjudication process, but it is the Petitioners who deliberately and intentionally
procrastinated the adjudication process by repeating the same thing that they have not
received all the RUDs and Co-relation chart, whereas the RUDs were received by them back
in 2008, and acknowledged the same when again forwarded by DRI. This is done simply to
take the defence of principal natural justice
8. Harsh 25.02.2009 23.01.2024 • Impugned SCN was Personal Hearings in the – Pre
Packaging transferred to the call book matter for the Petitioner
and Anr. v. w.e.f. 29.06.2016 in view of were held on the following
Principal Board’s instruction issued vide dates:
Commission F.No. 276/104/2016-
er of CX.8A(Pt.) dated 29.06.2016. 1. 23.09.2010
Customs 2. 17.12.2012
Import and • Impugned SCN was taken out 3. 14.11.2013
Anr. from the call book on 4. 19.12.2013
03.01.2017 in view of Board’s 5. 22.08.2023
WP(C) instruction issued vide F.No.
3865/2024 276/104/2016-CX.8A(Pt.)
dated 03.01.2017.
• Impugned SCN was transferred to the call book w.e.f. 03.11.2017 in view of Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 9 of 52 Board's instruction issued vide F.No. 437/143/2009-Cus.IV dated 03.11.2017. • Impugned SCN was taken out from the call book on 03.05.2019 in view of the Office Memorandum issued vide F.No. 437/143/2009- Cus.IV dated 03.05.2019. • Impugned SCN was transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. 04/2021 - Customs dated 17.03.2021. • The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. 9. Chaman Lal Same as WP(C) 3755/2024. Bhambri v. Principal Commission er of Customs Import and Anr. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 10 of 52 WP(C) 3866/2024 10. Chaman Lal Same as WP(C) 3755/2024. Bhambri Harsh Packaging v. Principal Commission er of Customs Import and Anr. WP(C) 3867/2024 11. Chaman Lal Same as WP(C) 3755/2024. Bhambri v. Principal Commission er of Customs Import and Anr. WP(C) 3868/2024 12. Chaman Lal Same as WP(C) 3755/2024. Bhambri Maruti Graphics v. Principal Commission Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 11 of 52 er of Customs Import and Anr. WP(C) 3872/2024 13. Chaman Lal Same as WP(C) 3755/2024. Bhambri (M/s U.S. Enterprises) v. Principal Commission er of Customs Import and Anr. WP(C) 3875/2024 14. Chaman Lal Same as WP(C) 3755/2024. Bhambri Maleshwari Printing Press v. Principal Commission er of Customs Import and Anr. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 12 of 52 WP(C) 3877/2024 15. Rajvani 25.02.2009 23.01.2024 • Impugned SCN was Personal Hearings in the - Pre Graphics transferred to the call book matter for the Petitioner Trade and w.e.f. 29.06.2016 in view of were held on the following Anr. v. Board's instruction issued vide dates: Principal F.No. 276/104/2016- Commission CX.8A(Pt.) dated 29.06.2016. 1. 23.09.2010 er of 2. 17.12.2012
Customs • Impugned SCN was taken out 3. 14.11.2013
Import and from the call book on 4. 19.12.2013
Anr. 03.01.2017 in view of Board’s 5. 22.08.2023
instruction issued vide F.No.
WP(C) 276/104/2016-CX.8A(Pt.)
3881/2024 dated 03.01.2017.
• Impugned SCN was transferred to the call book w.e.f. 03.11.2017 in view of Board's instruction issued vide F.No. 437/143/2009-Cus.IV dated 03.11.2017. • Impugned SCN was taken out from the call book on 03.05.2019 in view of the Office Memorandum issued vide F.No. 437/143/2009- Cus.IV dated 03.05.2019. • Impugned SCN was transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 13 of 52 Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. 04/2021 - Customs dated 17.03.2021. • The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. 16. Chaman Lal Same as WP(C) 3755/2024. Bhambri v. Principal Commission er of Customs Import and Anr. WP(C) 3885/2024 17. Chaman Lal Same as WP(C) 3755/2024. Bhambri Rajvani Graphics Trade v. Principal Commission er of Customs Import and Anr. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 14 of 52 WP(C) 3933/2024 18. Chaman Lal Same as WP(C) 3755/2024. Bhambri Man Bhavan Arts v. Principal Commission er of Customs Import and Anr. WP(C) 3934/2024 19. Chaman Lal Same as WP(C) 3755/2024. Bhambri Magnum Graphics v. Principal Commission er of Customs Import and Anr. WP(C) 3935/2024 20. M/s VOS SCN- Pending SCN transferred to Call book on • 15.09.2020 - Mr Ashok - Post Technologies 29.11.2019 01.04.2021 - The Adjudicating Pratap Singh, India Private Authority vide letter dated Advocate, appeared Ltd. v. The 01.04.2021 referring to Instruction and certain issues were Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 15 of 52 Principal Supplement No.4/2021-Cus dated 17.03.2021 raised , recorded Vide order Additional ary SCN- issued by the Board informed the (Annexure P/3 of W.P.) dated Director 20.04.2020 Petitioners that the impugned show 23.09.2021 General and cause notice is being transferred to • 07.04.2020- The in Suo-Moto Anr. Supplement the Call Book under the provisions Adjudicating Authority Writ Petition ary SCN- of Section 28(9A)(c) of the vide letter dated No. 03/2020, WP(C) 18.09.2020 Customs Act,1962. 28.02.2020 fixed the the Hon'ble 4831/2021 date of personal Supreme hearing for Court was 07.04.2020. pleased to exclude the • 29.07.2020- The period from Adjudicating Authority 15.03.2020 vide letter dated till 07.07.2020 fixed the 15.03.2022 date of personal for the hearing for purpose of 29.07.2020. limitation. • 15.09.2020-The Adjudicating Authority vide letter dated 17.08.2020 fixed the date of personal hearing for 15.09.2020.
21. M/s Amyra Same as M/s VOS Technologies India Private Ltd. v. Principal Additional Director General and Anr. [WP(C) 4831/2021] – S. No. 20.
Technica
Private
Limited v.
The Principal
Additional
Director
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 16 of 52
General and
Anr.
WP(C)
4832/2021
22. M/s R. Anil 02.09.2013 Order not yet Initial call book date not available • 24.05.2017: Petitioner cited the judgment of the Pre
Kumar and passed • Taken out of Call Book on Hon'ble High Court in the matter of M/s Mangli
Anr. v. ADG, 16.01.2017 lmpex Ltd in order to keep the adjudication in
DRI and Anr. • Transferred to call book vide abeyance.
Order dated 30.05.2017 in W. P. • 23.12.2020: The counsel of the Petitioners appeared
WP(C) (C)5016/2017 for Personal Hearing on 23.12.2020. However, even
15202/2023 • Taken out of call book in until then, no reply had been submitted on behalf of
November, 2019 on instructions the Petitioner.
of Chief Comm. Of Customs • 19.01.2021: Further time was sought to file a reply.
(Delhi Zone) • 10.02.2021: Counsel for the Petitioner submitted an
• Thereafter delay due to COVID- interim reply to the SCN and insisted on cross-
19 pandemic examination of one Mr. Madhusudan Satyanarayan,
• Placed in call book as per CBIC who had passed away on 30.11.2017.
Instruction No 04/2021- • 25.02.2021: Counsel for the Petitioner submitted an
Customs in July, 2021 interim reply to the SCN and insisted on cross-
• Finally, taken out in July, 2022 examination of one Mr. Madhusudan Satyanarayan,
who had passed away on 30.11 .2017.
• 05.08.2022: No appearance
• 12.08.2022: No appearance.
23. Laxmi Sales Same as M/s VOS Technologies India Private Ltd. v. Principal Additional Director General and Anr. [WP(C) 4831/2021] – S. No. 20.
Corporation
v. The
Principal
Additional
Director
General and
Anr.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 17 of 52
WP(C)
6193/2023
24. M/s Mohit 20.12.2013 Pending • Transferred to the Call Book in • 16.12.2022 • 21.08.2014 - Pre
International the light of the Board's • 02.03.2023 Advocate on behalf of
through Prop. Instruction issued vide F No. • 03.03.2023 M/s Mohit
Harsh Anil 276/104/2016-CX.8A(Pt.) • 09.03.2023 International vide
Kumar dated 29.06.2016 & letter dated
Vasant v. 28.12.2016. 21.08.2014 submitted
Commission that they have not
er of • Impugned SCN was received RUD-4 and
Customs Air transferred to the call book in absence of which
Cargo w.e.f 29.06.2016. they can’t file reply
Complex and requested to
(Exports) and • Impugned SCN was taken adjourn the hearing
Ors. out from the call book in for one month.
light of the Board's
WP(C) Instruction issued vide F No. • 04.12.2014-Advocate
3147/2023 276/104/2016-CX.8A(Pt.) on behalf of M/s
dated 03.01.2017. Mohit International
vide letter dated
• Reference is invited to the 16.12.2014 submitted
office Memorandum issued that they have not
vide F No. 437/143/2009- received RUD-4 in the
Cus.IV dated May 2019 absence of which they
regarding can't file reply and
"Adjudication/appeals arising requested to adjourn
out of Mangli Impex-taking out the hearing for one
such cases from Call Book for month and that they
adjudication", wherein received the PH letter
reference was made to the OM after 04.12.2014.
of even number dated
05.01.2018 that pursuant to • 22.05.2015- Advocate
various judgements of Delhi on behalf of M/s
High Court, there seems no Mohit International
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 18 of 52
legal bar to take up the vide letter dated
adjudication in pending cases. 21.08.2014 submitted
that they have not
• Impugned SCN was again received RUD-4 in the
transferred to call book absence of which they
w.e.f., 03.11.2017 in light of can't file reply and
the Board's Instruction requested to adjourn
issued vide F No. the hearing for one
437/143/2009-Cus.IV dated month.
03.11.2017.
• File was received back in the
ICD TKD Import
Commissionerate and
subsequently transferred to
ACC Export Commissionerate
in compliance of the Order No.
01/2018 dated 15.11.2018 for
the purpose of adjudication.
25. Sheel Narain 25.03.2008 30.05.2023 - • 15.12.2011 • 15.12.2011: Personal Pre
Gupta v. • 03.12.2014 hearing granted, but
Commission • 10.03.2017 adjournment sought
er of • 18.04.2023 on behalf of another
Customs Noticee (Naresh
Adjudication Uppal) on account of
and Ors. marriage of his
daughter.
WP(C) • Request made for
10289/2023 hearing on 12 January,
2012, but no notice
received.
• 03.12.2014 - Notice
for personal hearing
received, but
adjournment sought
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 19 of 52
on behalf of advocate
of noticee, Naresh
Uppal on account of
marriage of his
(advocate's) daughter.
No notice received till
2017.
26. Navshakti 23.12.2006 Pending Personal Hearing and Reply of Noticees and Department Correspondences Pre
Industries other relevant events
Pvt. Ltd. and 24.12.2006 SCN dated 23.12.2006 alongwith RUDs despatched by
Anr. v. DRI to all the Noticees.
Union of 1. 10.09.2007 Letter dated 10.09.2007 issued to all Noticees to submit
India and reply in two weeks' time and to approach the Assistant
Ors. Director, DRI to collect the RUDs if not received so far.
WP(C) Petitioner stated that since the matter of providing the non-
15971/2023 20.09.2007 RUDs is subjudice, adjudication proceedings may not be
concluded in haste.
2. 16.06.2009 Petitioner vide letter dated 23.06.2009 submitted the list
of documents which have not been supplied by DRI.
3 10.09.2009-PH None appeared in the PH.
4 08.10.2009-PH Petitioner requested to supply documents and requested
for Cross-examination of the DRI officials.
5 23.12.2009 Petitioner reiterated their earlier submissions.
6 18.02.2011 Hon’ble Supreme Court in Commissioner of Customs vs
Sayed Ali 2011 (265) ELT 17 held DRI officers to not be
proper officers for issuing the demand notice. However,
Customs Act was amended by the Legislature.
6 10.04.2012-PH Petitioner again requested for documents.
7 27.04.2012-PH Petitioner told that they have not received 18 documents.
8 13.01.2014-PH Petitioner told that they have not received 18 documents.
9 29.06.2016 Due to the judgement of the Hon'ble Delhi High Court
(Transferred to Call in WP(C) 441/2013 in the matter of M/s Mangli Impex
Book) Ltd.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 20 of 52
10 03.01.2017 (Taken out Board's Instruction issued vide F No. 276/104/2016-
of Call Book) CX.8A(Pt.) dated 03.01.2017.
11 06.06.2017-PH Petitioner asked for documents and cross-examination
12 03.11.2017 Board's Instruction issued vide F No. 437/143/2009-
(Transferred to Call Cus.IV dated 03.11.2017.
Book)
13 03.05.2019 (Taken out Office Memorandum issued vide F No. 437/143/2009-
of Call Book) Cus.IV dated 03.05.2019.
14 25.03.2020-PH None appeared in the PH.
15 09.08.2020/10.08.2020- None appeared in the PH.
PH
16 23/09/220 Petitioner requested for documents
&24/09/2020
17 19.11.2020-Virtual PH None appeared in the PH.
18 15.12.2020/17.12.2020- An e-mail dated 18.12.2020 was received from Petitioner
Virtual PH asking documents
19 17.03.2021 It was informed to all the noticees that the impugned
[Letter dated SCNs have been transferred to Call Book due to
08.04.2021 issued to all Hon’ble Supreme Courts’ Judgement in Canon India Pvt
Noticees (Call Book)] Ltd vs Commissioner of Customs 2021(376) ELT 3.
20 31.03.2022 Taken out of call Book in light of the book in light of
the Section 97 of the Finance Act, 2022 and CBIC
Circular No. 07/2022-Customs dated 31.03.2022.
21 23.08.2023-PH Petitioner requested for documents
22 26.12.2023-PH A PH letter dated 11.12.2023 was issued to all the noticees
wherein it was also informed that soft copies of RUDs can
be collected before the date of hearing i.e. 26.12.2023 in
the working hours.
In view of the above, it is apparent that Respondents have
always been trying to complete the adjudication process,
but it is the Petitioners who deliberately and intentionally
procrastinated the adjudication process by repeating the
same thing that they have not received all documents to
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 21 of 52
invoke the defence of principal of natural justice,
whereas the RUDs were received by them long time back.
27. M/s Sunny 12.03.2015 Pending • Transferred to the Call- • 20.02.2017: Vide their letter dt. 18.02.2017, Shri Pre
Sales v. Book on 21.07.2016 Sanjay Mehta, Partner of the Petitioner firm
Commission pursuant to the judgement requested for postponing the Personal Hearing
er of in Mangali Impex fixed on 20.02.2017 and supply of unfiltered
Customs • Thereafter, taken out D.O.V. data for the period 2010-2014.
(Adjudicatio again on 27.01.2017 • 12.07.2023 and 19.07.2023: Legislative
n) Delhi and • Again, transferred to the changes to validate SCN’s issued by officers of
Anr. Call-Book on 03.06.2021 DRI were introduced vide Finance Act, 2022.
in light of the pendency of Thereafter, personal hearing was given to the
WP(C) the Review Petition in noticees on 12.07.2023 and 19.07.2023.
16126/2023 Mangali Impex before the • 01.11.2023: The Superintendent (ADJ) issued
Hon’ble Supreme Court, notice for Personal Hearing vide letter dt.
• Taken out of the Call- 01.11.2023 and personal hearing was fixed on
Book in July, 2023 16.11.2023 in respect of M/s Sunny
International and others.
• 10.11.2023: Shri Harshad Mehta, Proprietor of
M/s Sunny International vide their letter dated
10.11.2023 (received on 15.11.2023) requested
for some documents and an adjournment of the
hearing fixed on 16.11.2023.
• 14.11.2023: Shri Harshad Mehta, Proprietor of
M/s Sunny International sent a reply vide email
letter dt. 14.11.2023, wherein he requested to
provide the notification of appointment of
Commissioner of Customs, Adjudication as
Commissioner of Customs, Kolkata.
28. SuperTech 20.04.2012 28.03.2024 • Not placed in the Call Book. • 25.04.2018 Opportunity of personal N/A – SCN
Engineers v. and • 24.01.2024 hearing was granted on issued under
Commission 16.10.2012 16.08.2021. However, the Finance Act,
er of Central Petitioner through its 1994
Tax Delhi authorized representative
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 22 of 52
West and intimated on 16.08.2021
Anr. that they are unable to
attend the PH due to some
WP(C) personal difficulties and
6146/2024 requested for another date.
He also requested that one
more case being SCN
dated 26.10.2018 may also
be taken up for personal
hearing on the next date of
hearing.
Certain other relevant
details are as follows:
• Subsequent to the cadre
restructuring in CBIC
held in 2014, the above
mentioned SCN was
assigned to the
Commissioner of
Central Excise
Gurgaon-I for
adjudication purpose
vide Order No.03/2014
dated 28.11.2014 issued
by the Director (Service
Tax), CBEC.
• The CBIC, vide
Circular No.
1049/37/2016-CX
dated September 29,
2016, enhanced the
monetary limits of
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 23 of 52
adjudication in the
competency of
Additional
Commissioner from up
to 50 Lakhs to up to 2
Crores. Hence, the
adjudicating authority
of the case was changed
from Commissioner to
Additional
Commissioner.
• Vide Order No.
10/2016-17 dated
21.02.2017 issued by
the Chief
Commissioner of
Service Tax, New
Delhi, the above
mentioned SCN was
assigned to the Service
Tax Delhi-II
Commissionerate for
adjudication purpose.
• Vide letter C. No.
IV(16)Hqrs./Adj/Supert
ech/453/ST/12 dated
09.01.2018 issued by
the CGST Delhi South
Commissionerate, file
in respect of the subject
SCN was transferred to
CGST Delhi North
Commissionerate on the
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 24 of 52
ground that the files
pertained to CGST
Delhi North
Commissionerate.
• The case file of subject
SCN was received in
CGST West
Commissionerate on
15.02.2018 for
adjudication.
• The Respondent
respectfully submits
that with the
introduction of Central
Goods and Services Tax
Act, 2017 and rise in
issues arising there
from, including the
need to conduct
physical verification of
various Registrants to
avoid and prevent
fraudulent activities and
misuse of the new tax
regime, it had become
difficult to make prompt
adjudication.
• It is in these
circumstances that a
fresh date for personal
hearing, in respect of all
5 clubbed SCNs was
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 25 of 52
fixed on 24.01.2024
vide letter C.
No. DL/GST/West/Hqr
s./Adjn/ADC/134/2022
-23 dated 18.01.2024.
• Sh. S. S. Dabas,
Advocate, on behalf of
party, attended the
personal hearing on
24.01.2024 and
submitted its reply,
inter-alia raising the
issue of limitation in
adjudication of the
show cause notice. The
last reply to one of the 5
(five) SCNs i.e. SCN
No. 195/Div-1/2014- 15
dated 23.05.2014 was
filed by the party on
14.03.2024.
• All the above
mentioned 5 SCNs
(including SCN No.
13/Audit/2012-13 dated
20.04.2012 & 164/Div-
I/2012-13 dated
16.10.2012) have been
adjudicated vide Order-
in- Original dated
28.03.2024. passed by
the Additional
Commissioner, CGST
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 26 of 52
Delhi West
Commissionerate.
• The final reply to the
SCNs was filed by the
party on 14.03.2024
and the department
has adjudicated all the
5 (Five) SCNs on
28.03.2024 i.e. within
two weeks after
receiving the final
reply.
29. Navshakti 22.12.2006 Pending • Impugned SCN wasPersonal Hearings in the • 20.11.2023 - the Pre
Industries transferred to the call book matter for the Petitioner Petitioner sought 8
Pvt. Ltd. and w.e.f. 29.06.2016 in view of were held on the following weeks' time to file
Anr. v. Union dates:
Board's instruction issued vide reply.
of India and F.No. 276/104/2016- 1. 17.04.2012
Ors. CX.8A(Pt.) dated 29.06.2016. 2. 30.09.2014 • 15.12.2023: The
3. 13.10.2014 matter was stayed by
WP(C) • Impugned SCN was taken out 4. 02.12.2020 this Hon’ble Court.
16193/2023 from the call book on 5. 11.08.2023
03.01.2017 in view of Board’s • It is matter of record
instruction issued vide F.No. that the Petitioner
276/104/2016-CX.8A(Pt.) repeatedly requested
dated 03.01.2017. for RUDs despite such
RUDs having been
• Impugned SCN was supplied to them –
transferred to the call book Ref. to Annexure R-
w.e.f. 03.11.2017 in view of 11 at p. 78 of the
Board’s instruction issued vide Counter Affidavit.
F.No. 437/143/2009-Cus.IV
dated 03.11.2017. • The repeated demands
for RUDs, which
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 27 of 52
• Impugned SCN was taken out contributed
from the call book on substantially to the
03.05.2019 in view of the delay in the
Office Memorandum issued adjudication of the
vide F.No. 437/143/2009- SCN, has been
Cus.IV dated 03.05.2019. elaborated in the list of
dates encapsulated in
• Impugned SCN was the Counter Affidavit
transferred to the call book on at pp. 2-13.
17.03.2021 in light of the
ruling of the Supreme Court in • It is also a matter of
Canon India Private Limited v. record that from 2008-
Commissioner of Customs and 2011, there was
Board’s Instruction No. ongoing litigation
04/2021 – Customs dated with respect to the
17.03.2021. Petitioner which has
been elaborated in the
• The impugned SCN was taken list of dates
out of the call book on encapsulated in the
01.04.2022 in view of the Counter Affidavit at
validation owing to Section 97 pp. 3-5.
of the Finance Act, 2022.
30. M/s Kasturi 23.12.2006 08.02.2024 • Board Lr. Dated 17.03.2021 There were 68 Noticees. • Noticees regularly Pre
International (Annexure-2 to the reply) PHs on: sought adjournment in
Pvt. Ltd. and the name of non-
Ors. v. • Communication dated 13.10.2008 submission of RUDs
Principal 06.04.2021 (Annexure-3 to the 14.04.2012 or Non-RUDs.
Commission Reply) 14.05.2012
er of 15.05.2012 • Did not appear on
Customs 16.05.2013 many personal
Import and 17.05.2013 Hearing Dates.
Anr. 20.05.2013
22.05.2013
24.05.2013
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 28 of 52
WP(C) 23.08.2013
5896/2024 26.08.2013
27.08.2013
29.08.2013
03.10.2013
04.10.2013
29.08.2013
03.10.2013
04.10.2013
07.10.2013
12.11.2013
20.12.2013
08.01.2014
09.01.2014
15.01.2014
10.10.2014
13.10.2014
14.10.2014
22.08.2016
23.08.2016
24.08.2016
30.08.2016
02.09.2016
06.09.2016
08.09.2016
13.09.2016
14.10.2016
15.09.2016
16.09.2016
17.09.2016
19.09.2016
20.10.2016
25.10.2016
16.11.2016
17.11.2016
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
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18.11.2016
21.11.2016
22.11.2016
23.11.2016
24.11.2016
25.11.2016
28.11.2016
29.11.2016
30.11.2016
01.12.2016
02.12.2016
05.12.2016
09.01.2017
11.01.2017
18.01.2017
19.01.2017
27.11.2018
28.11.2018
29.11.2018
03.12.2018
26.12.2018
27.12.2018
21.08.2019
22.08.2019
27.08.2019
28.08.2019
21.01.2020
22.01.2020
23.01.2020
18.02.2020
19.02.2020
20.02.2020
25.02.2020
13.10.2020
14.10.2020
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
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15.10.2020
24.08.2023
22.12.2023
(Pages 4-17 of reply)
31. SuperTech 26.10.2018 28.03.2024 Not placed in the Call Book. 24.01.2024 • The Respondent N/A - SCN
Engineers v. respectfully submits issued under
Commission that subsequent to the Finance Act,
er of Central enactment of the 1994
Tax Delhi Central Goods and
West and Services Tax Act,
Anr. 2017 and the attendant
increase in associated
WP (C) challenges, including
6147/2024 the necessity for
conducting physical
verification of
numerous registrants
to pre-empt fraudulent
activities and misuse
of the new tax
framework, timely
adjudication had
proven to be
challenging. This
situation persisted in
subsequent years, as
evidenced by
numerous instances of
fraudulent practices
such as bogus
registrations, issuance
of counterfeit
invoices, and
fraudulent refund
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
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W.P.(C) 4831/2021& connected matters Page 31 of 52
claims detected by the
department. In light of
these circumstances,
the expeditious
adjudication of
matters has
encountered
obstacles.
• It is in these
circumstances that a
fresh date for personal
hearing, in respect of
all 5 SCNs was fixed
on 24.01.2024 vide
letter C.
No. DL/GST/West/H
qrs./Adjn/ADC/134/2
022-23
dated 18.01.2024.
• Sh. S. S. Dabas,
Advocate, on behalf of
party, attended the
personal hearing on
24.01.2024 and
submitted its reply,
inter-alia raising the
issue of limitation in
adjudication of the
show cause notice.
The last reply to one
of the 5 (five) SCNs
i.e. SCN No. 195/Div-
1/2014- 15 dated
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
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23.05.2014 was filed
by the party on
14.03.2024.
• All the 5 SCNs
(including SCN No.
18/2018 dated
26.10.2018) have
been adjudicated vide
Order-in-
Original dated
28.03.2024 passed by
the Additional
Commissioner, CGST
Delhi West
Commissionerate. The
final reply to the SCNs
was filed by the party
on 14.03.2024 and the
department has
adjudicated all the 5
(Five) SCNs on
28.03.2024 i.e. within
two weeks after
receiving the
final reply.
32. Echo 25.05.2009 26.03.2024 - • 05.01.2024 - Pre
International • 09.02.2024
v.
Commission
er of
Customs
Export and
Anr.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 33 of 52
WP (C) 6190
/ 2024
33. Daily Ajit 22.12.2006 07.02.2024 • There were 18 Noticees.
Transferred to the Call book on Noticees regularly vide Pre
Punjabi and 29.06.2016 in light of Board'sPHs on letters dated 02.01.2007,
Newspaper Addendum Instructions 06.01.2014 17.01.2007, 19.01.2007,
Sadhu Singh dated F.No.276/104/2016- 17.06.2015 22.01.2007, 01.03.2007,
Hamdard 29.10.2007 CX.8A(pt) dated 29.06.2016 25.06.2015 3.5.2007, 20.11.2007,
Trust and 18.05.2017 29.03.2008, 06.06.2008
Anr. v. • SCN taken out of call book on 08.09.2023 01,09.2008, 13.01.2009
Principal 03.01.2017 in view of Board 22.11.2023 15.06.2009, 03.08.2007,
Commission Instruction No. 15.12.2023 29.10.2007, 06.11.2007,
er of F.No.276/104/2016- (Pages 5 to 16 of the 20.11.2007, 05.01.2008,
Customs and CX.8A(pt) dated 03.01.2017 reply) 01.02.2008, 02.04.2008,
Anr. 28.04.2008, 17\8.06.2008,
• In terms of 07.08.2004, 18.09.2008
WP(C) F.No.437/143/2009-Cus. 23.10.2008, 21.06.2010
6253/2024 Dated 03.11.2017 transferred were seeking one or the
to Call book w.e.f. 3.11.2017 other RUDs or Non-
RUDs.
• In terms of
F.No.437/143/2009-Cus.IV This was despite the DRI
dated 03.05.2019, taken out of having informed vide their
call book. communication dated
9.02.2008 that all RUDs
• In terms of Board's have been supplied to all
Instructions No. 04/2021-Cus. the noticees.
Dated 17.03.2021, Noticees
informed that SCN has been
transferred to Call book vide
letter dated 06.04.2021
• In terms of Circular No.
07/2022-Customs dated
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 34 of 52
31.03.2022
F.No.437/143/2009-Cus.
Dated 03.11.2017 transferred
to Call book w.e.f. 3.11.2017
• Board Circular No.07/2022-
Customs dated 31.03.2022
• Taken out of call book on
31.03.2022
34. Syona Spa v. 20.03.2020 16.01.2024 • No call book placement PHs on: None Post
Union of • 25.09.2023
India and • Delay due to COVID and • 05.10.2023
Ors. 73(4B) to be interpreted as not • 12.10.2023
mandatory as it states that the
WP(C) adjudication is to be completed However, none appeared
6429/2024 within one year where it is on the above dates.
possible to do so
• Petitioner caused delay by
filing reply to SCN almost 2.5
years after date of SCN i.e. on
29.07.2022
35. B.E. 25.06.2019 20.03.2024 - 29.01.2024 - Post
Contracts (P) and
Ltd. v. 20.09.2023
Commission (corrigendu
er, CGST m)
Audit-II,
Delhi
WP(C)
6524/2024
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 35 of 52
36. Delhi 24.04.2015 31.04.2024 No callbook placement Notice on 08.12.2023, None Pre
International attended on 22.12.2023.
Airport Delay due to COVID and 73(4B)
Limited v. to be interpreted as not mandatory
Commission as it states that the adjudication is
er of CGST to be completed within one year,
and Central where it is possible to do so.
Excise
WP(C)
6545/2024
37. GMR Airport 30.09.2020 13.02.2024 - • Reply filed on - The present
Infrastructure 20.09.2021 (nearly one case does not
Limited v. (under (Order passed year after the issuance pertain to the
Union of Section 73 within less of SCN) Customs Act
India and of the than 3 and therefore
Ors. Finance months from • Corrigendum to SCN the
Act, 1994) the date of issued on 21.09.2023. amendment
WP(C) Personal of 2018 is
6548/2024 Hearing) • Personal Hearing not
granted on 05.12.2023 applicable to
the facts of
the present
case.
In the present
case, SCN
has been
issued under
Section 73 of
the Finance
Act, 1994.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 36 of 52
Section
73(4B)
provides as
under:
The Central
Excise
Officer shall
determine
the amount of
service tax
due under
sub-section
(2)--
(a) within six
months from
the date of
notice where
itis possible
to do so, in
respect of
cases falling
under sub-
section (1);
(b) within
one year
from the date
of notice,
where it is
possible to
do so, in
respect of
cases falling
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 37 of 52
under the
proviso to
sub-section
(1) or the
proviso to
sub-section
(4A)].
38. M/s J.R. 07.11.2013 15.01.2024 • Impugned SCN was 28.12.2023 • 14.08.2014 - Nobody Pre
International transferred to the call book appeared on the given
v. Principal w.e.f. 29.06.2016 in view of date and time.
Commission Board's instruction issued vide
er of F.No. 276/104/2016- • 03.12.2014 - Nobody
Customs and CX.8A(Pt.) dated 29.06.2016. appeared on given
Anr. date and time.
• Impugned SCN was taken out Advocate on behalf
WP(C) from the call book on of Noticee No. 3
6714/2024 03.01.2017 in view of Board's requested for another
instruction issued vide F.No. date of personal
276/104/2016-CX.8A(Pt.) hearing.
dated 03.01.2017.
• 23.02.2015 - The AR
• Impugned SCN was of the Petitioner
transferred to the call book appeared and sought
w.e.f. 03.11.2017 in view of adjournment in the
Board's instruction issued vide matter.
F.No. 437/143/2009-Cus.IV
dated 03.11.2017. • 31.03.2015 - Nobody
appeared on the given
• Impugned SCN was taken out date and time.
from the call book on
03.05.2019 in view of the • 18.09.2015 - The ARs
Office Memorandum issued appeared and sought
vide F.No. 437/143/2009- more time to file the
Cus.IV dated 03.05.2019. reply.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 38 of 52
• Impugned SCN was • 13.10.2015 - AR of
transferred to the call book on the Petitioner stated
17.03.2021 in light of the that the Petitioner is in
ruling of the Supreme Court in the process of
Canon India Private Limited v. challenging the SCN
Commissioner of Customs and before the Delhi High
Board's Instruction No. Court in respect of the
04/2021 - Customs dated powers of the DRI to
17.03.2021. issue the said SCN,
and accordingly the
• The impugned SCN was taken proceedings could not
out of the call book on continue due to the
01.04.2022 in view of the said reason.
validation owing to Section 97
of the Finance Act, 2022. • 02.11.2015 – The AR
of the Petitioner stated
that the Petitioner had
filed a writ before the
Delhi High Court and
therefore the matter
may be kept in
abeyance.
• 18.11.2015 - The
Noticees were
requested to file their
replies as promised by
them in the personal
hearing held earlier.
The Noticees were
also requested to
provide stay order of
Hon'ble High Court of
Delhi in order to keep
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 39 of 52
the matter in abeyance
as requested by them.
However, no reply or
any stay order was
received. Also,
nobody appeared on
given date and time.
• 16.12.2015: The
Noticees were
specifically conveyed
that this was the last
personal hearing.
They were reminded
that they had not
submitted their replies
in the impugned
matter and the matter
was getting delayed
because of that. They
were also requested to
provide the stay order;
if any, passed by
Hon'ble High Court of
Delhi in the Writ filed
by them. Advocate
appeared on behalf of
Noticee No. 1 and he
too requested for
additional time of
thirty days. He was
also asked to submit
his reply by
15.01.2016 failing
with case will be
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 40 of 52
decided based on
available records.
• 02.03.2017 -
Advocate appeared
on behalf of the
Petitioner along with
the Proprietor. He
stated that the
Petitioner had moved
the Hon'ble Delhi
High Court on the
jurisdiction of DRI to
issue the said SCN
and that the Hon'ble
Delhi High Court has
passed an order (a
combined order in
case of Mangli
Impex) in their favour
and that the matter is
pending in the
Hon'ble Supreme
Court. He argued that
as the matter is sub-
judice, no order
should be passed till
the final disposal of
the case by the
Hon'ble Supreme
Court. He also
informed that all such
cases are not being
entertained in
CESTAT. He also
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 41 of 52
requested that he
should be given
opportunity to make
final submissions on
merit and another
chance of personal
hearing to argue the
case in detail.
• 05.10.2017 - None of
the noticees attended
the PH.
39. Shri. 22.12.2006 07.02.2024 03.05.2007 Petitioner asked for documents Pre
Surinder with and
Garg and addendum Petitioners reminders
Ors. v. to SCN cannot object dated
Principal dated to 20.11.2007
Commission 29.10.2007 conducting ,
er of of Personal 29.03.2008
Customs Hearing and ,
Import and subsequent 06.06.2008
Ors. passing of ,
the 01.09.2008
WP(C) Adjudication ,
7327/2024 order as they 13.01.2009
themselves
requested for And
a personal
hearing by 15.06.2009
letters dated
06.05.2023, 03.08.2007 Request for supply of RUDs was forwarded to DRI
09.05.2023,
06.09.2023 29.10.2007 Addendum to Show Cause Notice was issued
and
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 42 of 52
18.11.2023 06.11.2007 Petitioner states that photocopies of the some documents are unclear.
and had even
requested for 20.11.2007 Petitioner requested to provide the test reports
a virtual link /
for the same. 05.01.2008
01.02.2008 M/s Newsprint Trading Corporation submitted a letter referring to test reports
stated to be obtained in some other case
19.02.2008 DRI informed that RUDs have been supplied to all the noticees alongwith
the Show Cause Notice. However, on request of the noticees, relied upon
documents have been provided to the noticees and noticees have
acknowledged it.
02.04.2008 Petitioners requested for RUDs and list of RUDs
28.04.2008 Petitioners requested for documents
18.06.2008 M/s newsprint Trading Corporation submitted a letter dated 16.08.2008
requesting release
07.08.2008 Petitioners requested for fresh and testing
18.09.2008 Petitioners filed WP(C) No.4288/2008 for re-testing of samples which was
allowed.
23.10.2008 Vide letter dated 17.10.2008, DRI informed that in compliance of the Order
dated 02.09.2008 of the Hon’ble High Court of Delhi, fresh samples were sent
to CPPRI, Saharanpur for testing. DRI also forwarded copies of the test report
dated 24.09.2008 alongwith test result and observation to the Adjudicating
Authority.
20.11.2008 Petitioners letters requesting for release of 113.568 MTS of goods on the basis
04.12.2008 of test reports.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 43 of 52
12.01.2009
03.03.2009
19.05.2009 Provisional release was granted.
30.06.2009 DRI issued letter that documents being asked are not RUDs and thus may
not be provided.
21.06.2010 Co-Noticee Shri Gopal Tejpal Khetan submitted a letter dated 15.06.2010
denying the allegation and seeking copies of RUDs.
18.02.2011 The Hon’ble Supreme Court in Commissioner of Customs vs Sayed Ali [2011
(265) ELT 17] held DRI officers to not be proper officers for issuing the
demand notice. However, Customs Act was amended by the Legislature and
various Notifications/Circulars, like CBIC Circular 44/2011-Cus dated
23.09.2011 and CBIC Notification No 40/2012-Cus (N.T) dated 02.05.2012
assigning various officers of Customs, including the DRI, the functions of the
“Proper Officers” as mentioned in the Customs Act
09.12.2013 Personal hearing notice was issued for hearing on 06.01.2014
03.01.2014 Reply to PH letter dated 09.12.2013
09.10.2014 Adjudication file was transferred to the Commissioner (Adjudication), NCH in
light of the Boad letter F.No. 437/03/2012/Cus-IV dated 20.01.2012.
01.06.2015 Personal hearing notice issued to noticees for Personal hearing on 25.06.2015.
17.06.2015 Petitioners stated that reply to SCN could not be filed
– PH
25.06.2015 Personal hearing was attended by Petitioners.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 44 of 52
Counsel for co-noticees sought copies of RUDs and Non RUDs
25.06.2015 Petitioner submitted a letter dated 24.06.2005 challenging the jurisdiction of
DRI officers to issue SCN and seeking RUDs
25.03.2016 Vide letter It was informed by the DRI that RUDs were provided on 04.04.2007
and provided proof of acknowledgment
29.06.2016 Board’s Instruction issued vide F No. 276/104/2016-CX.8A(Pt.) dated
(Transfer 29.06.2016.
to Call
Book)
03.01.2017 Board's Instruction issued vide F No. 276/104/2016-CX.8A(Pt.) dated
(Taken out 03.01.2017.
of Call
Book)
18.05.2017 Personal hearing notice was issued to noticees to appears on 09.06.2017
Petitioner submitted they have not received documents
03.11.2017 Board’s Instruction issued vide F No. 437/143/2009-Cus.IV dated 03.11.2017
(Transfer
to Call
Book)
03.05.2019 office Memorandum issued vide F No. 437/143/2009-Cus.IV dated 03.05.2019
(Taken out
of Call
Book)
2020-21 Lockdown in the country due to COVID Pandemic
06.04.2021 Noticees were informed -transferred to call book -Board’s instructions
No.04/2021-Customs dated 17.03.2021
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 45 of 52
31.03.2022 Taken out of call Book -CBIC Circular No. 07/2022-Customs dated 31.03.2022
03.08.2023 Personal hearing notice was issued to the noticees appears on 08.09.2023
13.09.2023 Petitioners reiterated their request for documents.
07.11.2023 Notice for personal hearing issued to appear on 22.11.2023 and it was also
conveyed that if any noticee wants to collect RUDs the same may be collected
in Pen Drive.
Petitioner received the documents in pen drive on 16.11.2023.
22.11.2023 CO-Noticees stated that today RUDs have been received in soft copy in his pen
PH) drive. He asked time upto 4 weeks to file defence reply.
15.12.2023 Personal hearing was attended. Petitioners said that they have gone in High
(PH) Court & filed WRIT and requested case be kept in abeyance.
27.12.2023 Petitioners requested to keep the case in abeyance due to Writ.
24.01.2024 Vide letter dated 24.01.2024, noticee were informed that RUDs have been
supplied by the DRI and a soft copy of the same was also provided by the
concerned branch in pen drive. Further as sought by them, copies of Duty
Calculation Charts viz. Table A, Table B1 and table B2 and list of RUDs having
Sr. No.56 & 57 were forwarded to the noticees. Noticees were requested to
submit their reply.
In view of the above, it is apparent that Respondents have always been trying
to complete the adjudication process, but it is the Petitioners who deliberately
and intentionally procrastinated the Adjudication process by repeating the
same thing that they have not received all documents to invoke the defence
of principal of natural justice, whereas the RUDs were received by them long
time back.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 46 of 52
40. Elof Hansson 8 SCNs Order passed • Impugned SCN was • 06.01.2014 – Pre
India Private been issued. on transferred to the call book • 25.06.2015
Limited v. 07.02.2024 in w.e.f. 29.06.2016 in view of • 09.06.2017
Principal 22.12.2006 SCN Board’s instruction issued vide • 08.09.2023
Commission 22.12.2006 F.No.23/118/ F.No. 276/104/2016- • 22.11.2023
er Inland 23.12.2006 2005-DZU CX.8A(Pt.) dated 29.06.2016.
Container 23.12.2006 dated and Anr. 10.03.2008 22.12.2006 • Impugned SCN was taken out 18.03.2008 and from the call book on WP (C) 23.05.2008 remaining 03.01.2017 in view of Board's 7355/2024 & SCN not instruction issued vide F.No. 12.01.2009 adjudicated 276/104/2016-CX.8A(Pt.) yet dated 03.01.2017. • Impugned SCN was transferred to the call book w.e.f. 03.11.2017 in view of Board's instruction issued vide F.No. 437/143/2009-Cus.IV dated 03.11.2017. • Impugned SCN was taken out from the call book on 03.05.2019 in view of the Office Memorandum issued vide F.No. 437/143/2009- Cus.IV dated 03.05.2019. • Impugned SCN was transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 47 of 52 04/2021 - Customs dated 17.03.2021. • The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. 41. Thermo 20.04.2009 19.01.2024 SCN was transferred to call book • 22.06.2017 - Pre Control and on 18.10.2016, 06.01.2017 and • 21.11.2019 Instruments 29.05.2019. • 11.08.2023 and Ors. v. The impugned SCNs were taken • 27.12.2023 Principal out of Call Book in January' 2017 Commission in compliance of Board's Order er of D.O.F. No. 437/143/2009-Cus IV Customs and dated 06.01.2017. Anr. WP© 8074/2024 42. Chander 04.11.2011 19.01.2024 • Impugned SCN was • 21.11.2019 • 23.06.2017 Pre Mohan and transferred to the call book • 11.08.2023 Co. v. w.e.f. 29.06.2016 in view of • 27.12.2023 Principal Board's instruction issued vide Commission F.No. 276/104/2016- er of CX.8A(Pt.) dated 29.06.2016. Customs and Ors. • Impugned SCN was taken out from the call book on WP(C) 03.01.2017 in view of Board's 8077/2024 instruction issued vide F.No. 276/104/2016-CX.8A(Pt.) dated 03.01.2017. Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 48 of 52 • Impugned SCN was transferred to the call book w.e.f. 03.11.2017 in view of Board's instruction issued vide F.No. 437/143/2009-Cus.IV dated 03.11.2017. • Impugned SCN was taken out from the call book on 03.05.2019 in view of the Office Memorandum issued vide F.No. 437/143/2009- Cus.IV dated 03.05.2019. • Impugned SCN was transferred to the call book on 17.03.2021 in light of the ruling of the Supreme Court in Canon India Private Limited v. Commissioner of Customs and Board's Instruction No. 04/2021 - Customs dated 17.03.2021. • The impugned SCN was taken out of the call book on 01.04.2022 in view of the validation owing to Section 97 of the Finance Act, 2022. 43. Ascent 23.10.2013 28.03.2024 • The SCN was not transferred Personal hearing was - Pre Construction to the call book. granted to the Petitioner Pvt. Ltd. v. on: Commission • The Petitioner vide its reply during Personal Hearing • 26.10.2023 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 W.P.(C) 4831/2021& connected matters Page 49 of 52 er, CGST scheduled on 19.10.2015 had • 03.11.2023 Delhi (East) requested the Respondent to • 21.11.2023 transfer the case for a matter • 29.11.2023 WP(C) pertaining to 'goods supplied • 18.12.2023 8355/2024 free of cost by the contractee' • 20.12.2023 - The only to the call book, however, no time when the proceedings pertaining to Petitioner, through its transfer of the said matter to authorised the call book took place. representatives, made itself available for the personal hearing. 44. Shree 31.12.2013 27.02.2024 • SCN was transferred to call Personal hearing was - - Ganesh book w.e.f. 29.06.2016 in light granted to the noticees and Metal Co. vs. of the Board's Instruction fixed for 28.04.2023 and
The Addl. issued vide F No. 09.05.2023. However,
COC Import 276/104/2016-CX.8A(Pt.) none of the notices
dated 29.06.2016. appeared in the personal
W.P.(C)- Hearing. Thereafter, PH
5767/2024 • The SCN was taken out from was fixed on
the call book in light of the 28/29/30.11.2023 and in
Board’s Instruction issued vide response to which, it came
F No. 276/104/2016- to notice that, M /s Shree
CX.8A(Pt.) dated 03.01.2017. Ganesh Metal Co. has filed
Writ Petition in the subject
• Impugned SCN was matter.
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 taken
out from the call book in light
of the office Memorandum
issued vide F No.
437/143/2009-Cus.IV dated
03.05.2019.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 50 of 52
• Impugned SCN was again
transferred to call book w.e.f
17.03.2021 in light of the
Board's Instruction No.
04/2021-Customs dated
17.03.2021.
• SCNs were taken out from the
call book in light of the CBIC
Circular No. 07/2022-Customs
dated 31.03.2022
45. Lakshman 30.04.2010 OIO not • Member (Customs) vide - - -
Overseas vs. passed D.O.F. No.437/143 / 2009-
PRINCIPAL CusIV-pt.II dated 06.01.2017
COMMISSI directed the field formations to
ONER OF draw up an action plan for
CUSTOMS adjudications of these cases in
(IMPORT) a time bound manner.
W.P: • Board's Circular No.
5952/2024 1053/02/2017-CX dated
10.03.2017 stipulates that
where the department has gone
in appeal to the appropriate
authority, the case can be
transferred to call book
• In compliance of the specific
instruction bearing
F.No.276/104/ 2016- CX.8A
(Pt.) dated 03.09.2019 issued
by the Board the case has been
taken out from call book and
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 51 of 52
adjudication proceedings have
been initiated.
46. Shri. Prakash Same as WP(C) 7327/2024.
Garg and
Ors. v.
Principal However, Petitioner cannot object to conducting of personal hearing and subsequent passing of the adjudication order as they themselves
Commission requested for a personal hearing by letters dated 06.09.2023 and 18.11.2023 and had even requested for a virtual link for the same.
er of
Customs Also, it is apparent that Respondents have always been trying to complete the adjudication process, but it is the Petitioners who deliberately
Import and and intentionally procrastinated the adjudication process by repeating the same thing that they have not received all documents to invoke
Ors. the defence of principal of natural justice, whereas the RUDs were received by them long time back.
WP(C)5529
/2024
47. Abdul 27.11.2009, 31.03.2023 - 08.10.2021 and 10.03.2023 Never appeared before -
Khalique v. 23.04.2013, 08.10.2021 and sought
Commission 20.05.2014, adjournment once
er Central 20.04.2015, thereafter.
Goods and 12.05.2016,
Service Tax 19.04.2018
and
WP(C) 10.02.2020
10020/2023
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
Signature Not Verified
Digitally Signed
By:KAMLESH KUMAR
Signing Date:10.12.2024
17:18:44
W.P.(C) 4831/2021& connected matters Page 52 of 52