CHAMAN LAL BHAMBRI MALESHWARI PRINTING PRESS vs PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND ANR

2024-12-10 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 13 August 2024

Judgment pronounced on: 10 December 2024

+ W.P.(C) 4831/2021

M/S VOS TECHNOLOGIES INDIA PVT. LTD. …..Petitioner

Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.

versus

THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL &
ANR. …..Respondents

Through: Mr. Harpreet Singh, Sr. St.
Counsel with Ms. Suhani and
Mr. Jatin Kumar Gaur, Adv.

+ W.P.(C) 4832/2021

M/S AMYRA TECHNICA PVT.LTD. …..Petitioner

Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.

versus

THE PRINCIPAL ADDITIONAL DIRECTOR GENERAL &
ANR. …. Respondents.

Through: Mr. Harpreet Singh, Sr. St.
Counsel with Ms. Suhani and
Mr. Jatin Kumar Gaur, Adv.

+ W.P.(C) 15202/2023 & CM APPL. 60768/2023 (Stay)

M/S R ANIL KUMAR & ANR. …..Petitioner

Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Shikha Sapra, Mr. Piyush
Kumar, Ms. Reena Rawat, Mr.
Nikhil Beniwal, Mr. Navish
Bhati, Mr. Mahabir Singh, Mr.
Archit Jindal and Mr. Akash
Gupta, Advs.

versus

ADDITIONAL DIRECTOR GENERAL, DIRECTORATE OF
REVENUE INTELLIGENCE & ANR. ….Respondents

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-1.

Mr. Aditya Singla, SSC with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates.

+ W.P.(C) 6193/2021

LAXMI SALES CORPORATION …..Petitioner

Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.

versus

THE PRINCIPAL ADDITIONAL

DIRECTOR GENERAL …..Respondent

Through: Mr. Harpreet Singh, Sr. St.
Counsel with Ms. Suhani and
Mr. Jatin Kumar Gaur, Adv.

+ W.P.(C) 3147/2023

M/S MOHIT INTERNATIONAL THROUGH, PROP. HARSH
ANIL KUMAR VASA …..Petitioner

Through: Mr. V.V.Gautam, Ms. Nitu
Barik, Ms. Priya Bhatia, Advs.

versus

COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX
(EXPORTS) & ORS. ….Respondents

Through: Mr. Harpreet Singh, SSC

Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,

Adv.

+ W.P.(C) 10289/2023 & CM APPL. 22837/2024 (Stay)

SHEEL NARAIN GUPTA …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

COMMISSIONER OF CUSTOMS ADJUDICATION AND
ORS ….Respondent

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2.

+ W.P.(C) 12425/2023 & CM APPL. 49000/2023 (Stay)

ASHISH JAIN & ORS. ….Petitioners

Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Shikha Sapra, Mr. Piyush
Kumar, Ms. Reena Rawat, Mr.
Nikhil Beniwal, Mr. Navish
Bhati, Mr. Mahabir Singh, Mr.
Archit Jindal and Mr. Akash
Gupta, Advs.

versus

ADDITIONAL DIRECTOR GENERAL, DIRECTORATE OF
REVENUE INTELLIGENCE & ANR. …..Respondents

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv.

Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-2.

+ W.P.(C) 13509/2023 & CM APPL. 64301/2023 (Stay)

ACRY MONOMERS INDIA PVT LTD & ORS. …..Petitioners

Through: Mr. Prem Ranjan Kumar, and

Ms. Poojan Malhotra,
Advocates.

versus

ADDITIONAL DIRECTOR GENERAL DIRECTORATE OF
REVENUE INTELLIGENCE & ANR. …..Respondents

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv.

Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-2.

+ W.P.(C) 15971/2023 & CM APPL. 64259/2023 (Stay)

NAVSHAKTI INDUSTRIES PVT LTD

AND ANR …Petitioners

Through: Mr. T.P.S.Kang, Md. Zunaid and
Mr. Mohek Gupta, Advs.

versus

UNION OF INDIA AND ORS. …..Respondents

Through: Ms. Gigi George and Mr.
Dheeraj Singh, Adv. for R-1.

Ms. Bakshi Vinita, SPC.

Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-2.

+ W.P.(C) 16126/2023 & CM APPL. 64821/2023 (Stay)

M/S SUNNY SALES …..Petitioner

Through: Mr. Sunil Dalal, Sr. Adv. with
Ms. Shikha Sapra, Mr. Piyush
Kumar, Ms. Reena Rawat, Mr.
Nikhil Beniwal, Mr. Navish
Bhati, Mr. Mahabir Singh, Mr.
Archit Jindal and Mr. Akash
Gupta, Advs.

versus

COMMISIONER OF CUSTOMS (ADJUDICATION) DELHI &
ANR. …..Respondents

Through: Mr. Aditya Singla, SSC with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates

+ W.P.(C) 16163/2023 & CM APPL. 65012/2023 (Stay)

CITY PAPER …..Petitioner

Through: Mr. T.P.S.Kang, Md. Zunaid and
Mr. Mohek Gupta, Advs.

versus

UNION OF INDIA AND ORS …..Respondents

Through: Ms. Gigi George and Mr.
Dheeraj Singh, Adv. for R-1

Mr. Gibran Naushad, SSC.

Mr Ranvir Singh, CGSPC with
Mr. A.K.Singh, Adv.

Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-4.

+ W.P.(C) 6146/2024 & CM APPL. 25563/2024 (Stay)

SUPERTECH ENGINEERS …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

COMMISSIONER OF CENTRAL TAX DELHI WEST AND
ANR …..Respondents

Through: Mr. Gibran Naushad, SSC.

Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for Resp.

+ W.P.(C) 16193/2023 & CM APPL. 65092/2023 (Stay)

NAVSHAKTI INDUSTRIES PVT LTD

AND ANR …..Petitioners

Through: Mr. T.P.S.Kang, Md. Zunaid
and Mr. Mohek Gupta, Advs.

versus

UNION OF INDIA AND ORS …..Respondents

Through: Mr. J.K.Tripathi, SPC for R-1
and Ms. Bakshi Vinita, SPC

Mr. Gibran Naushad, SSC.

+ W.P.(C) 3705/2024

ECHO INTERNATIONAL AND ORS ….Petitioners

Through: Dr. Prabhat Kumar and
Mr. Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Ms. Anushree Narain, Standing
Counsel with Ms. Nishtha
Mittal, Adv. for R-1

Mr. Anurag Ojha, SSC with
Mr. Subham Kumar, Mr.Vipul
Kumar and Mr. Abhishek, Adv.
for R.

+ W.P.(C) 3737/2024

DOLPHIN PRINTERS AND ANR …..Petitioners

Through: Dr. Prabhat Kumar and
Mr. Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Ms. Anushree Narain,
Standing Counsel with Ms.
Nishtha Mittal, Adv. for R-1

Mr. Anurag Ojha, SSC with
Mr. Subham Kumar, Mr. Vipul
Kumar and Mr. Abhishek, Adv.
for R-2

+ W.P.(C) 3753/2024

BHAMBRI PRINTING PRESS AND ORS …..Petitioners

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OFCUSTOMS IMPORT AND
ANR …..Respondents

Through: Ms. Anushree Narain, Standing
Counsel with Ms. Nishtha
Mittal, Adv. for R-1

Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.

Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for R-2

+ W.P.(C) 3755/2024

RHEA INTERNATIONAL AND ANR …..Petitioners

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.

Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2

+ W.P.(C) 3865/2024 & CM APPL. 15953/2024 (Stay) & CM
APPL.46437/2024 (18 Days Delay in C.A.)

HARSH PACKAGING AND ANR …..Petitioners

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT)
AND ANR …..Respondents

Through: Mr. Gibran Naushad, SSC.

Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2

+ W.P.(C) 3866/2024

CHAMAN LAL BHAMBRI …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.

+ W.P.(C) 3867/2024

CHAMAN LAL BHAMBRI HARSH

PACKAGING …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.

+ W.P.(C) 3868/2024

CHAMAN LAL BHAMBRI …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.

+ W.P.(C) 3872/2024

CHAMAN LAL BHAMBRI MARUTI

GRAPHICS …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv.
for R-1.

+ W.P.(C) 3875/2024

CHAMAN LAL BHAMBRI (M/S U.S.

ENTERPRISES) …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.

+ W.P.(C) 3877/2024

CHAMAN LAL BHAMBRI MALESHWARI PRINTING
PRESS …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with

Mr. Vaibhav Gupta, Adv. for
R-1.

+ W.P.(C) 3881/2024 & CM APPL. 15994/2024 (Stay),
46457/2024 (delay of 19 days in filing the counter affidavit)

RAJVANI GRAPHICS TRADE AND ANR …..Petitioners

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Gibran Naushad, SSC.

+ W.P.(C) 3885/2024

CHAMAN LAL BHAMBRI …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.

+ W.P.(C) 3933/2024

CHAMAN LAL BHAMBRI RAJVANI GRAPHICS

TRADE …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT)
AND ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.

+ W.P.(C) 3934/2024

CHAMAN LAL BHAMBRI MAN BHAVAN

ARTS …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORT AND
ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC
with Mr. Vaibhav Gupta, Adv.
for R-1.

+ W.P.(C) 3935/2024

CHAMAN LAL BHAMBRI MAGNUM

GRAPHICS …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT)
AND ANR …..Respondents

Through: Mr. Aakarsh Srivastava, SC with
Mr. Vaibhav Gupta, Adv. for
R-1.

Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham

Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for R-2

+ W.P.(C) 5529/2024 & CM APPL. 22745/2024 (Stay)

PRAKASH GARG & ORS. …..Petitioners

Through: Mr. A.K. Prasad, Mr. K.K.
Anand, Ms. Surabhi Sinha, Mr.
Prem Ranjan, Ms. Aakriti Anand
and Ms. Sweety Gangmei, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORTS &
ORS. …..Respondents

Through: Mr. Aakarsh Srivastava,
SC with Mr. Vaibhav Gupta,

Adv. for R-1.

Mr. Anurag Ojha, Sr. St. Counsel

with Mr. Subham Kumar,

Mr.Vipul Kumar and Mr.

Abhishek, Adv. for R-2

Mr. T.P.Singh, SGC for R-3.

+ W.P.(C) 5767/2024 & CM APPL. 23891/2024

SHREE GANESH METAL CO. …..Petitioner

Through: Mr. Prem Ranjan Kumar, and
Ms. Poojan Malhotra,
Advocates.

versus

THE ADDITIONAL COMMISSIONER OF CUSTOMS
IMPORT & ANR. …..Respondents

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2

+ W.P.(C) 5896/2024

M/S KASTURI INTERNATIONAL PVT.

LTD. & ORS. …..Petitioners

Through: Mr. Arjun Raghavendra and
Mr. Piyush Deshpande, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS (IMPORT) &
ANR. …..Respondents

Through: Mr. R.Ramchandran, SSC.

Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2

+ W.P.(C) 5952/2024 & CM APPL. 24739/2024 (stay)

M/S LAKSHMAN OVERSEAS …..Petitioner

Through: Mr. Deepak Gandhi, Mr. Sumit
Kumar Jha and Mr. Ricky
Chaudhary, Advs.

versus

PRINCIPAL COMMISSIONER OF

CUSTOMS (IMPORT) …..Respondent

Through: Mr. Harpreet Singh, SSC

+ W.P.(C) 6147/2024 & CM APPL. 25568/2024 (stay)

SUPERTECH ENGINEERS …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

COMMISSIONER OF CENTRAL TAX (DELHI WEST) AND
ANR …..Respondents

Through: Mr. Gibran Naushad, SSC.

+ W.P.(C) 6190/2024 & CM APPL. 25739/2024 (Stay)

ECHO INTERNATIONAL …..Petitioner

Through: Dr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.

versus

COMMISSIONER OF CUSTOMS EXPORT

AND ANR …..Respondent

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R-2

+ W.P.(C) 6253/2024 & CM APPL. 26068/2024 (Stay)

DAILY AJIT PUNJABI PUNJABI NEWSPAPER, SADHU
SINGH HAMDARD TRUST & ANR. …..Petitioners

Through: Mr. Prem Ranjan Kumar and

Ms. Poojan Malhotra,
Advocates.

versus

THE PRINCIPAL COMMISSIONER OF

CUSTOMS & ANR …..Respondents

Through: Mr. R.Ramchandran, Sr. SC.

Mr. Anurag Ojha, Sr. St.
Counsel with Mr. Subham
Kumar, Mr. Vipul Kumar and
Mr. Abhishek, Adv. for R-2

+ W.P.(C) 6429/2024 & CM APPL. 26808/2024 (Interim Relief),
CM APPL. 26810/2024 (addl record)

SYONA SPA …..Petitioner

Through: Mr. J.K.Mittal, Ms. Vandana
Mittal and Mr. Mukesh
Chaudhary, Advs.

versus

UNION OF INDIA & ORS. …..Respondents

Through: Mr. Aditya Singla, SSC with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates.

+ W.P.(C) 6524/2024

B. E. CONTRACTS (P) LTD …..Petitioner

Through: Mr. Ravi Kant Chandok, Mr.
Umesh Sarwal, Mr. Vasudev
Lalvani, Mr. Tushar Sahni and
Mr.Siddharth Sarwal, Advs.

versus

COMMISSIONER, CENTRAL GOODS AND SERVICES TAX
AUDIT – II, DELHI …..Respondent

Through: Mr. Harpreet Singh, SSC with
Mr. Atul Tripathi, SSC, CBIC
with Mr. V.K.Attri, Mr. Amresh
Jha and Ms. Preeti Kumari,
Advocates.

+ W.P.(C) 6545/2024 & CM APPL. 27291/2024

DELHI INTERNATIONAL AIRPORT LIMITED …..Petitioner

Through: Mr. Sparsh Bhargava, Ms. Ishita
Farsaiya and Ms. Vanshika
Taneja, Advs.

versus

COMMISSIONER OF CGST AND

CENTRAL EXCISE …..Respondent

Through: Mr. Aditya Singla, SSc with Ms.
Charu Sharma, Mr. Ritvik Saha
and Mr. Raghav Bakshi,
Advocates.

+ W.P.(C) 6548/2024 & CM APPL. 27294/2024 (Interim Relief) ,

GMR AIRPORT INFRASTRUCTURE LIMITED

(EARLIER KNOWN AS GMR INFRASTRUCTURE
LIMITED) …..Petitioner

Through: Mr. Sparsh Bhargava, Ms. Ishita
Farsaiya and Ms. Vanshika
Taneja, Advs.

versus

UNION OF INDIA & ORS. …..Respondents

Through: Mr. Asheesh Jain, CGSC with
Mr. Gaurav Kumar and Mr.
Yashaswi S.K.Chocksey, Govt.
Pleader. For R-1.

Ms. Sonu Bhatnagar, Sr. St.
Counsel with Ms. Nishtha Mittal,
Ms. Apurva Singh and Mr.
K.S.Mary Jonet, Adv. for R-2.

Mr. Ramchandran, SR. SC.

+ W.P.(C) 6714/2024 & CM APPL. 27966/2024 (Stay), CM
APPL. 46258/2024 (delay of 18 days )

M/S J.R. INTERNATIONAL …..Petitioner

Through: Mr. Abhas Mishra and Ms. Neha
Singhal, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS

AND ANR …..Respondents

Through: Mr. Gibran Naushad, SSC.

Mr. Harpreet Singh, SSC for
R-2.

+ W.P.(C) 7327/2024 & CM APPL. 30571/2024 (Stay)

SHRI SURINDER GARG & ORS. …..Petitioners

Through: Mr. A.K. Prasad, Mr. K.K.
Anand, Ms. Surabhi Sinha, Mr.
Prem Ranjan, Ms. Aakriti Anand
and Ms. Sweety Gangmei, Advs.

versus

PRINCIPAL COMMISSIONER OF CUSTOMS IMPORTS &
ORS. …..Respondents

Through: Mr. Anurag Ojha, SSC with Mr.
Subham Kumar, Mr. Vipul

Kumar and Mr. Abhishek, Adv.
for R-2

Mr. Shankar Kumar Jha, SPC,
UOI.

+ W.P.(C) 7355/2024 & CM APPL. 30706/2024 (Stay)

ELOF HANSSON INDIA PRIVATE LIMITED …..Petitioner

Through: Mr. Tarun Gulati, Sr. Adv. with
Ms. Shruti Kulkarni, Mr. Suresh

Varanasi, Mr. Harpreet Singh
Ajmani, Mr. Sagnik Chatterjee
and Ms. Gunjan Pande, Advs.

versus

PRINCIPAL COMMISSIONER INLAND CONTAINER &
ANR. …..Respondents

Through: Mr. Aakarsh Srivastava, St.
Counsel with Mr. Vaibhav
Gupta, Adv. for R-1 and 2.

Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Advs.

+ W.P.(C) 8074/2024 & CM APPL. 33277/2024 (Stay), CM
APPL. 46394/2024

THERMO CONTROL AND INSTRUMENTS

& ORS. …..Petitioners

Through: Mr. Pavan Narang, Mr.
Himanshu Sethi, Mr.
K.K.Malhotra, Mr. K.K.Bhalla
and Ms. Aishwarya Chhabra,
Advs.

versus

PRINCIPAL COMMISSIONER OF

CUSTOMS & ORS. …..Respondents

Through: Mr. Anurag Ojha, Sr. St. Counsel
with Mr. Subham Kumar, Mr.
Vipul Kumar and Mr. Abhishek,
Adv. for R1 to R3.

+ W.P.(C) 8077/2024 & CM APPL. 33284/2024 (Stay), CM
APPL. 46394/2024

CHANDER MOHAN AND CO. …..Petitioner

Through: Mr. Pavan Narang, Mr.
Himanshu Sethi, Mr.
K.K.Malhotra, Mr. K.K.Bhalla
and Ms. Aishwarya Chhabra,
Advs.

versus

PRINCIPAL COMMISSIONER OF

CUSTOMS & ORS. …..Respondents

Through: Mr. Gibran Naushad, SSC.

+ W.P.(C) 8355/2024 & CM APPL. 34337/2024 (Stay)

ASCENT CONSTRUCTIONS PVT LTD …..Petitioner

Through: Mr. Ravi Kant Chandok, Mr.
Umesh Sarwal, Mr. Vasudev
Lalvani, Mr. Tushar Sahni and
Mr. Siddharth Sarwal, Advs.

versus

COMMISSIONER, CENTRAL GOODS AND SERVICES TAX
DELHI (EAST) …..Respondent

Through: Mr. Akshay Amritanshu, Sr. St.
Counsel with Mr. Samyak Jain,
Ms. Pragya Upadhyay and Ms.
Drishti Saraf, Advs.

+ W.P.(C) 10020/2023 & CM APPL. 38629/2023 (Stay)

ABDUL KHALIQUE …..Petitioner

Through: Mr. Ravi Kant Chandok, Mr.
Umesh Sarwal, Mr. Vasudev
Lalvani, Mr. Tushar Sahni and
Mr. Siddharth Sarwal, Advs.

versus

COMMISSIONER, CENTRAL GOODS & SERVICES TAX,
DELHI (NORTH) …..Respondent

Through: Mr. Atul Tripathi, SSC with Mr.

V.K.Attri, Mr. Amresh Jha and
Ms. Preeti Kumari, Advs.

CORAM:

HON’BLE MR. JUSTICE YASHWANT VARMA

HON’BLE MR. JUSTICE RAVINDER DUDEJA

J U D G M E N T
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
Notices1 and pending adjudication proceedings arising out of the

1 SCNs

Customs Act, 19622, the Finance Act, 19943 and the Central Goods
and Services Tax, 20174. 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, 20185 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

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 Ali6 and Canon India (P) Ltd. vs.
Commr. of Customs7. 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

Revenue Intelligence8 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. UOI9.
7. Mangali Impex was concerned with the Customs (Amendment
and Validation) Act, 201110 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.

8 DRI

9 2016 SCC OnLine Del 2597

10 Amendment and Validation Act

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

accordance with the provisions of that statute. Section 28 of the
Customs Act is concerned with duties and interest that may have been
either not levied, paid, short-levied, short-paid, or erroneously
refunded. It also extends to instances where levy of duty would have
escaped or a refund erroneously granted by reason of collusion, wilful
misstatement or suppression of facts by the importer or the exporter.
The provision as it exists today is reproduced hereinbelow:

[28. Recovery of [duties not levied or not paid or short-levied or
short-paid] or erroneously refunded.(1) Where any [duty has
not been levied or not paid or has been short-levied or short-paid] or
erroneously refunded, or any interest payable has not been paid, partpaid
or erroneously refunded, for any reason other than the reasons
of collusion or any wilful mis-statement or suppression of facts,

(a) the proper officer shall, within [two years] from the
relevant date, serve notice on the person chargeable with the
duty or interest which has not been so levied [or paid] or
which has been short-levied or short-paid or to whom the
refund has erroneously been made, requiring him to show
cause why he should not pay the amount specified in the
notice:

[Provided that before issuing notice, the proper officer
shall hold pre-notice consultation with the person
chargeable with duty or interest in such manner as may be
prescribed;]

(b) the person chargeable with the duty or interest, may pay
before service of notice under clause (a) on the basis of,

(i) his own ascertainment of such duty; or

(ii) the duty ascertained by the proper officer,

the amount of duty along with the interest payable thereon
under Section 28-AA or the amount of interest which has
not been so paid or part-paid:

[Provided that the proper officer shall not serve such
show cause notice, where the amount involved is less than
Rupees One hundred.]

(2) The person who has paid the duty along with interest or amount
of interest under clause (b) of sub-section (1) shall inform the proper
officer of such payment in writing, who, on receipt of such
information, shall not serve any notice under clause (a) of that sub-

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

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

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):

[Provided that where the proper officer fails to so
determine within the specified period, any officer senior in
rank to the proper officer may, having regard to the
circumstances under which the proper officer was prevented
from determining the amount of duty or interest under subsection
(8), extend the period specified in clause (a) to a
further period of six months and the period specified in
clause (b) to a further period of one year:

Provided further that where the proper officer fails to
determine within such extended period, such proceeding
shall be deemed to have concluded as if no notice had been
issued.]

[(9-A) Notwithstanding anything contained in sub-section (9), where
the proper officer is unable to determine the amount of duty or
interest under sub-section (8) for the reason that

(a) an appeal in a similar matter of the same person or any
other person is pending before the Appellate Tribunal or the
High Court or the Supreme Court; or

(b) an interim order of stay has been issued by the Appellate
Tribunal or the High Court or the Supreme Court; or

(d) the Settlement Commission has admitted an application
made by the person concerned,

the proper officer shall inform the person concerned the reason for
non-determination of the amount of duty or interest under subsection
(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 subsection
(1) of Section 4 before the 6th day of July, 2011, shall be
deemed to have and always had the power of assessment under
Section 17 and shall be deemed to have been and always had been
the proper officers for the purposes of this section.]

Explanation 1.For the purposes of this section, relevant date
means,

(a) in a case where duty is [not levied or not paid or shortlevied
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;

(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

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

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 subsection
(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

W.P.(C) 4831/2021 & connected matters Page 30 of 125
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 Customs11 which was earlier known as the
Central Board of Excise and Customs12
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
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.
13
Explanation 4.For the removal of doubts, it is hereby declared
that in cases where notice has been issued for non-levy, not paid,
short-levy or short-paid or erroneous refund after the 14th day of
May, 2015, but before the date on which the Finance Bill, 2018
, had
read as follows:
11 Board/CBIC
12 Board/CBEC
13 2020 Act

receives the assent of the President, they shall continue to be
governed by the provisions of Section 28 as it stood immediately
before the date on which such assent is received.

16. Explanation 4 as it exists now, and which came to be recast with
retrospective effect from 29 March 2018 as per the provisions of the
2020 Act, provides that notwithstanding any judgment, decree or order,
any notice pertaining to non-levy, short-levy or erroneous refunds,
issued prior to 29 March 2018 (the date of commencement of 2018 Act)
would be governed by the provisions of Section 28, as they stood
immediately before that date.
17. We then proceed further to notice similar provisions which stand
incorporated in the 1994 Act. Section 73 of the 1994 Act incorporates
the following provision with respect to non-levy, short-levy or
erroneous refund of tax:

[73. Recovery of service tax not levied or paid or short-levied or
short-paid or erroneously refunded.(1) Where any service tax
has not been levied or paid or has been short-levied or short-paid or
erroneously refunded, the [Central Excise Officer] may,
within [thirty months] from the relevant date, serve notice on the
person chargeable with the service tax which has not been levied or
paid or which has been short-levied or short-paid or the person to
whom such tax refund has erroneously been made, requiring him to
show cause why he should not pay the amount specified in the
notice:

Provided that where any service tax has not been levied or
paid or has been short-levied or short-paid or erroneously refunded
by reason of

(a) fraud; or

(b) collusion; or

(d) suppression of facts; or

(e) contravention of any of the provisions of this chapter or
of the rules made thereunder with intent to evade payment
of service tax,

by the person chargeable with the service tax or his agent, the
provisions of this sub-section shall have effect, as if, for the words
[thirty months], the words five years had been substituted.

Explanation.Where the service of the notice is stayed by an order
of a court, the period of such stay shall be excluded in computing the
aforesaid period of [thirty months] or five years, as the case may be.

[(1-A) Notwithstanding anything contained in sub-section (1)
(except the period of [thirty months] of serving the notice for
recovery of service tax), the Central Excise Officer may serve,
subsequent to any notice or notices served under that sub-section, a
statement, containing the details of service tax not levied or paid or
short levied or short paid or erroneously refunded for the subsequent
period, on the person chargeable to service tax, then, service of such
statement shall be deemed to be service of notice on such person,
subject to the condition that the grounds relied upon for the
subsequent period are same as are mentioned in the earlier notices.]

[(1-B) Notwithstanding anything contained in sub-section (1), in a
case where the amount of service tax payable has been self-assessed
in the return furnished under sub-section (1) of Section 70, but not
paid either in full or in part, the same shall be recovered along with
interest thereon in any of the modes specified in Section 87, without
service of notice under sub-section (1).]

(2) The [Central Excise Officer] shall, after considering the
representation, if any, made by the person on whom notice is served
under sub-section (1), determine the amount of service tax due from,
or erroneously refunded to, such person (not being in excess of the
amount specified in the notice) and thereupon such person shall pay
the amount so determined:

[* * *].]

[(2-A) Where any appellate authority or tribunal or court concludes
that the notice issued under the proviso to sub-section (1) is not
sustainable for the reason that the charge of,

(a) fraud; or

(b) collusion; or

(d) suppression of facts; or

(e) contravention of any of the provisions of this Chapter or
the rules made thereunder with intent to evade payment of
service tax,

has not been established against the person chargeable with the
service tax, to whom the notice was issued, the Central Excise
Officer shall determine the service tax payable by such person for
the period of [thirty months], as if the notice was issued for the

offences for which limitation of [thirty months] applies under subsection
(1).]

(3) Where any service tax has not been levied or paid or has been
short-levied or short-paid or erroneously refunded, the person
chargeable with the service tax, or the person to whom such tax
refund has erroneously been made, may pay the amount of such
service tax, chargeable or erroneously refunded, on the basis of his
own ascertainment thereof, or on the basis of tax ascertained by a
Central Excise Officer before service of notice on him under subsection
(1) in respect of such service tax, and inform the [Central
Excise Officer] of such payment in writing, who, on receipt of such
information shall not serve any notice under sub-section (1) in
respect of the amount so paid:

Provided that the [Central Excise Officer] may determine
the amount of short-payment of service tax or erroneously refunded
service tax, if any, which in his opinion has not been paid by such
person and, then, the [Central Excise Officer] shall proceed to
recover such amount in the manner specified in this section, and the
period of [thirty months] referred to in sub-section (1) shall be
counted from the date of receipt of such information of payment.

[Explanation-1].For the removal of doubts, it is hereby declared
that the interest under Section 75 shall be payable on the amount
paid by the person under this sub-section and also on the amount of
short payment of service tax or erroneously refunded service tax, if
any, as may be determined by the [Central Excise Officer], but for
this sub-section.

[Explanation-2.For the removal of doubts, it is hereby declared
that no penalty under any of the provisions of this Act or the rules
made thereunder shall be imposed in respect of payment of service
tax under this sub-section and interest thereon.]

(4) Nothing contained in sub-section (3) shall apply to a case where
any service tax has not been levied or paid or has been short-levied
or short-paid or erroneously refunded by reason of

(a) fraud; or

(b) collusion; or

(d) suppression of facts; or

(e) contravention of any of the provisions of this chapter or
of the rules made thereunder with intent to evade payment
of service tax.

(4-A) [* * *]

[(4-B) The Central Excise Officer shall determine the amount of
service tax due under sub-section (2)

(a) within six months from the date of notice where it is
possible to do so, in respect of cases [falling under] subsection
(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;

(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

phrase where it is possible to do so as opposed to the amendments
which came to be made in Section 28 of the Customs Act.
19. The CGST Act also adopts similar provisions for purposes of
determination of tax not paid, short-paid or erroneously refunded in the
shape of Sections 73 and 74. Both those provisions, which came to be
enforced from 01 July 2017 are reproduced hereinbelow:-

73. Determination of tax [pertaining to the period up to
Financial Year 2023-24,] not paid or short paid or erroneously
refunded or input tax credit wrongly availed or utilised for any
reason other than fraud or any wilful-misstatement or
suppression of facts.(1) Where it appears to the proper officer
that any tax has not been paid or short paid or erroneously refunded,
or where input tax credit has been wrongly availed or utilised for any
reason, other than the reason of fraud or any wilful-misstatement or
suppression of facts to evade tax, he shall serve notice on the person
chargeable with tax which has not been so paid or which has been so
short paid or to whom the refund has erroneously been made, or who
has wrongly availed or utilised input tax credit, requiring him to
show cause as to why he should not pay the amount specified in the
notice along with interest payable thereon under Section 50 and a
penalty leviable under the provisions of this Act or the rules made
thereunder.

(2) The proper officer shall issue the notice under sub-section (1) at
least three months prior to the time limit specified in sub-section (10)
for issuance of order.

(3) Where a notice has been issued for any period under sub-section
(1), the proper officer may serve a statement, containing the details
of tax not paid or short paid or erroneously refunded or input tax
credit wrongly availed or utilised for such periods other than those
covered under sub-section (1), on the person chargeable with tax.

(4) The service of such statement shall be deemed to be service of
notice on such person under sub-section (1), subject to the condition
that the grounds relied upon for such tax periods other than those
covered under sub-section (1) are the same as are mentioned in the
earlier notice.

(5) The person chargeable with tax may, before service of notice
under sub-section (1) or, as the case may be, the statement under
sub-section (3), pay the amount of tax along with interest payable
thereon under Section 50 on the basis of his own ascertainment 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) or, as the case may be, the statement
under sub-section (3), in respect of the tax so paid or any penalty
payable under the provisions of this Act or the rules made
thereunder.

(7) Where the proper officer is of the opinion that the amount paid
under sub-section (5) falls short of the amount actually payable, he
shall proceed to issue the notice as provided for in sub-section (1) in
respect of such amount which falls short of the amount actually
payable.

(8) Where any person chargeable with tax under sub-section (1) or
sub-section (3) pays the said tax along with interest payable under
Section 50 within thirty days of issue of show cause notice, no
penalty shall be payable and all proceedings in respect of the said
notice shall be deemed to be concluded.

(9) The proper officer shall, after considering the representation, if
any, made by person chargeable with tax, determine the amount of
tax, interest and a penalty equivalent to ten per cent. of tax or ten
thousand rupees, whichever is higher, due from such person and
issue an order.

(10) The proper officer shall issue the order under sub-section (9)
within three years from the due date for furnishing of annual return
for the financial year to which the tax not paid or short paid or input
tax credit wrongly availed or utilised relates to or within three years
from the date of erroneous refund.

(11) Notwithstanding anything contained in sub-section (6) or subsection
(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

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.

(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.

(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

days of issue of the notice, all proceedings in respect of the said
notice shall be deemed to be concluded.

(9) The proper officer shall, after considering the representation, if
any, made by the person chargeable with tax, determine the amount
of tax, interest and penalty due from such person and issue an order.

(10) The proper officer shall issue the order under sub-section (9)
within a period of five years from the due date for furnishing of
annual return for the financial year to which the tax not paid or short
paid or input tax credit wrongly availed or utilised relates to or
within five years from the date of erroneous refund.

(11) Where any person served with an order issued under sub-section
(9) pays the tax along with interest payable thereon under Section 50
and a penalty equivalent to fifty per cent. of such tax within thirty
days of communication of the order, all proceedings in respect of the
said notice shall be deemed to be concluded.

[(12) The provisions of this section shall be applicable for
determination of tax pertaining to the period up to Financial Year
2023-24.]

Explanation 1.For the purposes of Section 73 and this section,

(i) the expression all proceedings in respect of the said
notice shall not include proceedings under Section 132;

(ii) where the notice under the same proceedings is issued to
the main person liable to pay tax and some other persons,
and such proceedings against the main person have been
concluded under Section 73 or Section 74, the proceedings
against all the persons liable to pay penalty under [Sections
122 and 125] are deemed to be concluded.

Explanation 2.[* * *]

20. We have chosen to extract those provisions for the sake of
completeness and notwithstanding the petitioners asserting that by
virtue of Section 174(2) of the CGST Act, and which constitutes the
Repeal and Saving clause, it would be the provisions of the 1994 Act
which would govern.
21. In terms of Section 73(1) of the CGST Act, which is principally
concerned with cases other than where allegations of fraud, wilful
misstatement or suppression of facts are made, and pertains to tax

incorrectly computed, erroneously refunded or benefits wrongly
availed, sets out terminal points within which action referable to that
provision would have to be commenced and concluded. A final order on
the culmination of adjudication is liable to be framed by the proper
officer in terms contemplated under Section 73(9) of the CGST Act. By
virtue of sub-section (10) thereof, the proper officer is bound to frame
such an order within three years from the due date for furnishing of an
annual return. A notice commencing proceedings referable to Section
73 must be issued at least three months prior to the time limit as
specified in sub-section (10) coming to an end. It is relevant to observe
that Section 73(10) of the CGST Act uses the words shall issue and
does not adopt the where it is possible to do so phraseology as
employed by the Customs Act and 1994 Act. Similar is the position that
obtains in cases where fraud, wilful misstatement or suppression of
facts may be alleged, and in which eventuality it is the provisions of
Section 74 of the CGST Act which would govern.

III. THE PROPER OFFICER CONUNDRUM

22. Before proceeding further, we deem it appropriate to take note of
certain judicial interventions and which cast a doubt on the jurisdiction
and authority of officers of the DRI to undertake an adjudication or
determination of duty/interest under the Customs Act. In Sayed Ali, the
Supreme Court was called upon to examine the correctness of the view
expressed by the Customs Exci