ORDER
Jyoti Balasundaram, Vice-President
1. After hearing both sides for some time on the application for stay of operation of the order of the Commissioner of Customs, who has upheld the order dated 26-9-2006 extending the period for issue of show cause notice by six months i.e. up to 27-3-2007, we find that the appeal itself can be disposed off at this stage. Hence, after granting the stay, we take up the appeal for final disposal.
2. In this case, the appellant had imported Retro-Reflective sheets vide Bill of Entry dated 10-8-2005 and on the basis of investigation of undervaluation of the consignment, the consignment was detained and the consignment was seized on 28-3-2006. The investigation could not be completed within the time provided to the customs authorities as certain details, which were called for from the importer, were not furnished and extension of the period of issue of show cause notice therefore become necessary. The Commissioner of Customs (Imp) being satisfied that the facts exist that indicate that the investigation could not be completed for bona fide reasons, allowed extension of seizure beyond six months for a further period of six months in accordance with the provisions of Section 110 of the Customs Act, 1962 on 26-9-2006. On 26-12-2006, show cause notice under Section 110 was issued. By the present impugned order, the extension order passed on 26-9-2006 has been upheld.
3. The appellant’s contention is that the order dated 26-9-2006 extending the period for issue of show cause notice was not issued to them and this fact is not disputed by the Revenue. Therefore, in the light, of the judgment of Larger Bench of the Hon’ble Supreme Court in the case of I.J. Rao, Asstt. Collector of Customs v. Bibhuti Bhushan Bagh holding that notice for extension should be issued before the expiry of six months period for retention of the seized goods, the present impugned order cannot be sustained. Further, reliance is placed upon the Tribunal’s decision in the case of B.R. Enterprises v. CC, New Delhi holding that the order passed pursuant to show cause notice proposing extension should be issued before the expiry of six months from date of seizure.
4. The ld. DR reiterates the impugned order upholding the order of extension of six months time for issue of show cause notice, although admittedly the extension order was not issued to the importer. He submits that personal hearing was granted and the show cause notice was issued in December, 2006, which serves the purpose of putting the importer on notice as to why the period for issue of show cause notice is required to be extended. He, therefore, submits that there is no legal infirmity in the present impugned order and also draws our attention to the fact that show cause notice was issued in month of December, 06 and goods confiscated on 17-3-2007. He, therefore, submits that impugned order may be upheld and appeal rejected.
5. We have carefully considered the rival submissions. We find substantial force in the plea of the appellants that the order of extension should have been issued before the expiry of six months from the date of seizure in the light of the Hon’ble Supreme Court decision in the case of I.J. Rao, Asstt. Commissioner (cited supra), wherein the Apex Court has held that it would be open to the Collector, if he finds that sufficient cause has been made out before him in that behalf, to extend the time beyond the original period of six months, after notice has been served on the person concerned, and in case service of notice is evaded, to afford a post-decisional hearing in order to determine whether the order of extension should be cancelled or not. In the present case, the Commissioner has recorded that summons were issued to the importer but there was no response from them, but this would not mean that service of notice was evaded by the importer. The importer was therefore entitled to notice before the six months period expired.
6. In the light of above discussion, we hold that the present impugned order cannot be sustained for the reason that the order extending period for issue of show cause notice was not issued to the importer before the expiry of six months period. Accordingly, we set aside the present impugned order, by which the extension order is upheld and allow the appeal.
(Dictated and pronounced in Court)