M/s Swees Gems & Jewellery, M/s Aaradhya Impex Versus CGST & CE, Jaipur-I
Customs
2019 (2) TMI 1375 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 21-2-2019
Appeal No. C/53512-53513/2018-Cus. (DB) – Final Order No. 50283-50284/2019
Customs
Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical)
Sh. Arun Goyal, Advocate – for the appellant
Shri Rakesh Kumar, DR – for the respondent
ORDER
Per: Bijay kumar :
All these appeals have been filed by the appellant on an identical issue and, therefore, being disposed of by this common order. The details of the adjudication order are as under :
S.No.
Bill of Entry
Name of Importer
Date of detention/seizure
1.
6045058 & 6046267 dated 19.4.2018
M/s Swees Gems & Jewelery
26.4.2018/8.8.2018
2.
6044641 & 6045969 dated 19.4.2018
M/s Aardhya Impex
26.4.2018/8.8.2018
2. In all these cases, the appellants have imported the consignment of rough diamond (precious stone) from Hong Kong
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RI/DZU/JRU/19/INT-11/ENQ.23/2018/1866 dated 12.10.2018 to the Commissioner of Customs, Jaipur. In the said letter of DRI, the Commissioner of Customs, Jaipur was appraised of various difficulties in not issuing the Show Cause Notice within the prescribed time of six months from the date of detention/seizure of the goods. Being aggrieved by these orders, the appellants have filed these appeals before this Tribunal.
4. Ld. Advocate on behalf of the appellant submits that in this case, the appellant were not issued the Show Cause Notice and given opportunity to be heard before extending the time limit for issuance of Show Cause Noptice under provisions of Customs Act.
4.1 He referred and relied upon the decision of Hon'ble Supreme Court in the case of I.J. Rao, Assistant Collector of Customs Vs. Bibhuti Bhushan Bagh – 1989 (42) ELT 338 (SC) wherein it is held that extension of six months period for issuance of Show Cause Notice cannot be done by the Commissioner without hearing the appe
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), wherein it is held that extension of period for retention of seized goods cannot be permitted without sufficient cause and without opportunity of being heard to the person from whose possession goods are seized
4.3 Ld. Advocate relied upon the following cases where similar view has been entertained by the respective Courts :
(i) Chunilal Damani Vs. Collr. of Cus. and C. Ex., West Bengal – 2000 (126) ELT 357 (Cal.)
(ii) K.K. Sukhani Vs. Union of India – 1999 (110) ELT 505 (Pat.).
(iii) Works of Art (Pvt.) Ltd. and Another Vs. Union of India & Others – 1998 (36) ELT 91 (Bom.).
4.4 The ld. Advocate also submitted that the amendment to the provisions of Section 110(2) of Customs Act by Finance Act, 2018, will not alter the situation as for grant of personal hearing before the extension of Show Cause Notice. He, accordingly, prayed for setting aside the impugned order and allow release of seized goods for the violation of the provisions of Section 110(2) of Customs Act.
5. Ld. AR,
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suance of Show Cause Notice. The Commissioner after applying his mind and considering the surrounding circumstances extended the time period for issue of Show Cause Notice by another six months.
6. We have considered the rival contentions and also perused the case record along with the investigation file submitted before the Bench by ld. AR. In these cases, the issue to be decided is as to whether after the amendment of Section 110(2) of Customs Act by Finance Act, 2018 is there any need for issuance of the Show Cause Notice before the extension is permitted by another six months on the reasonable ground by the Commissioner/adjudicating authority. To resolve the controversy, it will be appropriate to refer the Section 110(2) before the amendment and also after the amendment vide Finance Act, 2018. The same is reproduced as under :
Section 110(2) before
Section 110(2) after
Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a)
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d as under:
“I also propose to make certain change to the Customs Act, 1962 to further improve ease of doing business in cross border trade, and to align certain provisions with the commitments under the Trade Facilitation Agreement. To smoothen dispute resolution processes and to reduce litigation, certain amendments are being made, to provide for pre-notice consultation, definite timelines for adjudication and deemed closure of cases of tose timelines are not adhered to.”
Clause 90 of the Bill seeks, to amend Section 110 of the Customs Act so as to give power to extend the period for issuing Show Cause Notice in case of seized goods by a further period of six months to case in cases where no order for provisional release of goods has been passed. We find that similar issue has been decided by the coordinate bench of this Tribunal vide Final Order No. 75047-75048/2018 dated 17.1.2019 in the case of S.R.K. Metal & Industries & Pink Commercial, wherein it is held as under:
“Our atten
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g Authority has to give the proper reasoning by way of reasoned order after examining the requirement for extension of time period as per sub proviso 2 of Section 110. Question as to whether the person claiming restoration of the goods under Section 110 of Act is entitled to notice before time is extending, this flows from the circumstances that this is a quasi judicial proceeding, and also it goes beyond the doubt that rights of a person are likely to prejudicially affected, he is entitled to opportunity to put forwarded his case before the Adjudicating Authority. Therefore, the person from whom the goods have been seized, is entitled to notice of the proposal before Adjudicating Authority for the extension of original period of the six months under Section 110(2) of the Customs Act subject to the restriction that he is not entitled to the information about the investigation which is in possession of the Investigating Agency as there can be no right in any person to be informed whose
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iscussed above, even after insertion of with new sentence in the provisions of Section 110(2) of the Act. In fact, we are of the view that after amendment not only the Show Cause Notice is required to be issued by the Adjudicating Authority, but he has also to give a reasoned order after hearing the Investigation Officer and also taking view of the affected party from whom seizure has been made as his personal right is being deprived of which emanate from the Section 110(1) of the Act that entitled him to got the goods returned which has been seized from his possession. This is also cleared from statements of objects in the Finance Act as discussed above.
13. In view of above, we are of the opinion that the impugned order is in violation in this provisions of Section 110 of the Customs Act has held in the various decisions discussed above. We have also seen the note sheet order of the Ld. Commissioner in this case. It is seen from the order that the Commissioner while extending the ti
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at in case of Commissioner of Income Tax (Central-1), New Delhi vs. Vatika Township) [(2014) 0 SCC 670], Hon'ble Supreme Court has held that law enacted in absence of a provision in the statue about the same being with of retrospective effect in the Clause of Finance Act, the amendment will have prospective effect only. In view of that also we find that the impugned order is not sustainable as the new amended provision has been applied for the seizure made during period when the amendment was not there in the statue.
14. In view of above our analysis as above, we are of the considered opinion that there is no legality for dispensing with the Show Cause Notices to the affected party even under the amended provisions of Section 110(2) of the Act. The Adjudicating Authority has erroneously held that this is no need of issue of Show Cause Notice in the cases of extension at hand.
15. Accordingly, we set aside the impugned orders and allow appeals with consequential relief as per law.”
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