HARYANA SHEET GLASS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Articles 226 and 227 of the Constitution of India challenges show cause notice dated 4th May 2009 issued by respondent No. 2 - Commissioner of Central Excise & Customs, Surat-II, raising a demand of customs duty under Section 28(1) of the Customs Act, 1962 (the Act) and interest under Section 28AB of the Act; proposing penalty under Section 112 and confiscation of imported capital goods under Section 111 of the Act, etc.

(2.) According to the petitioner, the demand raised in the show cause notice pertains to the period from October 1996 to January 1998, whereas the show cause notice has been issued on 4th May 2009 and as such, in view of the provisions of Section 28(1) of the Act the show cause notice is ex facie time-barred.

(3.) Mr. Uday Joshi, learned advocate for the petitioners has submitted that on a perusal of the show cause notice, it is apparent that the same pertains to the period from October 1996 to January 1998, whereas the same has been issued on 4th May 2009. Attention is invited to the provisions of Sub-section (1) of Section 28 of the Act, to submit that the demand in the show cause notice has been raised under the said provision which expressly provides for service of notice to a person chargeable with duty or interest within a period of six months from the relevant date whereas, in cases of collusion or any willful misstatement or suppression of fact by the importer or the exporter, the said period is substituted by five years. It is further submitted that the Explanation to Section 28(1) of the Act specifically provides that, 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 one year or six months or five years, as the case may be. It is further submitted that a perusal of the provisions of Section 11A(1) of the Central Excise Act, 1994 as well as Section 28(1) of the Act, makes it absolutely clear that the time limit for issuance of show cause notice has been clearly stipulated therein and that, there no authority and/or forum is vested with the power to condone any delay caused in issuance of show cause notice under the said provision.