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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 19 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 20 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 21 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 22 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 24 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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):

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.

(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"

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 27 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 28 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 29 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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:

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:

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:

(4-A) [* * *] [(4-B) 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 (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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 34 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:-

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 36 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 37 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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.--[* * *]"

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:

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 .

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 43 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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.

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 44 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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, Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 45 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 47 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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.

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 50 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

29. By way of exemplar, we also extract an instruction dated 17 March 2021 as issued by the Board hereinbelow:

2. Further, attention is drawn to the specific reference for seeking Board's direction with respect to SCN dated 19.03.2019 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 52 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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)"

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 58 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 60 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 61 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 62 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 :

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 65 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 would be the principles of reasonable time which would apply. This becomes evident from a reading of the following passages of that decision:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 66 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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"

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 68 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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."

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 71 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

In circular dated 28th May 2003 :

In circular dated 10th March 2017 :

19. In this regard, it is pertinent to refer to the provisions of Section 11A of the CEA which reads as under :-

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 75 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 76 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 77 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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:

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:

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:

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"

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 83 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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:

51. Proceeding then to examine the challenge on facts, the Court in Swatch Group held:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 85 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 86 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 88 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 91 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

60. Similarly, in Swati Menthol, the Supreme Court had held as under:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 93 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 94 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 96 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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 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:

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:

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:

30 2019 Act Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 102 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44

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:

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 103 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 104 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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."

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 106 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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:

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:

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 110 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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).

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"

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:

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 114 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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:

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.

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:

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.

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"

6.9.1990). 2. The Board vide its < > specified the following categories of cases which can be transferred to call book viz.:

In circular dated 10th March 2017 :

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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 123 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 124 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 Signature Not Verified W.P.(C) 4831/2021 & connected matters Page 125 of 125 Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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.

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.

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 Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:10.12.2024 17:18:44 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 By:KAMLESH KUMAR 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.

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.

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 Signature Not Verified Digitally Signed By:KAMLESH KUMAR 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-

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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:

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.

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.

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.

Customs and CX.8A(Pt.) dated 29.06.2016. appeared on given Anr. date and time.

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.

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.

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.

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.

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.

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.

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-