W.P.(C) 5796/2025 Page 1 of 22

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 19.08.2026

Judgment pronounced on: 07.09.2026

Judgment uploaded on: 07.09.2026

# CNR No. DHC010260632025

+ W.P.(C) 5796/2025 & CM APPL. 26401/2025

GKEM INTERNATIONAL PVT LTD & ORS. ....Petitioner

Through: Mr. Deepak Gandhi and Ms.

Ida Bhatnagar, Advs.

versus

COMMISSIONER OF CUSTOMS ICD PPG AND OTHERS

ICDS .....Respondent

Through: Mr. Arjun Malik, SSC along

with Ms. Mayuri Makhija, Adv.

for R-1.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MS. JUSTICE SHAIL JAIN

J U D G M E N T

ANIL KSHETARPAL , J.

1. By way of the present Petition, the Petitioners seek declaration

of the Show Cause Notice (SCN) dated 24.06.2022, as non-est in view

of Section 28(9) of the Customs Act, 1962 [hereinafter referred to as

„Act of 1962‟]. Additionally, in the aforesaid backdrop, the Petitioners

also pray for recall of the Order-in-Original (OIO) dated 29.11.2024,

inasmuch as the Impugned SCN upon which it came to be premised

was beyond the prescribed period of limitation. It is not in dispute that

the Petitioners have an alternate remedy of Appeal against the

Impugned OIO. However, it is claimed that the OIO was passed

beyond the permissible period, hence, this Court should quash the

same in exercise of its writ jurisdiction.

W.P.(C) 5796/2025 Page 2 of 22

A. BRIEF FACTUAL BACKGROUND

2. The Petitioners herein are engaged in the business of importing

duty free raw materials, in form of Electorlytic Copper Rods and

exporting the same after value addition, i.e., by manufacturing Copper

Wire/Power Cables. To carry out the aforesaid business, Petitioner

Nos.1 and 2 availed duty-free import benefits under Advance

Authorisation Licences (AAL) issued by Director General of Foreign

Trade (DGFT) under Notification No. 18/2015-Cus dated 01.04.2015

[hereinafter referred to as „Notification 2015‟].

3. In pursuance thereof, the Petitioner No.2 was issued four such

licences between 16.12.2019 and 03.06.2020, while Petitioner No.1

was issued five licences between 12.03.2020 and 19.08.2020. In

accordance with the terms of AAL, the raw material had to be

imported within one year of the license, and the furnished goods

manufactured therefrom had to be exported within eighteen (18)

months of import. Additionally, the importers were also to execute a

bond in favour of the President of India, by which it undertook to

fulfil the Export Obligation (EO) and furnish proof of the same within

thirty days of expiry of the Export Obligation Period (EOP).

Genesis of the dispute

4. The genesis of the present dispute arises out of information

being received by the Customs Preventive Commissionerate, Delhi.

Following which an investigation was conducted, and it was revealed

that the Petitioner Nos.1 and 2, instead of manufacturing and

exporting the finished goods as mandated under the AAL, diverted the

W.P.(C) 5796/2025 Page 3 of 22

duty-free imported raw material into the domestic market, in the guise

of job work, without fulfilling the stipulated EO. The said action of

the Petitioners was treated as being violative of condition (x), the

actual user condition, of Notification 2015.

5. During the course of investigation, it was further revealed that

the firms to which the goods were purportedly sent for job work

existed only on paper. Moreover, as per statements recorded under

Section 108 of the Act of 1962 during investigation, it was admitted

that the imported materials had not been used for manufacture of

export goods and as such the EO had not been fulfilled.

6. It is on the basis of the aforestated that the Impugned SCN

came to be issued against the Petitioners, calling upon them to show

cause under Section 28(4) read with Section 28AAA of the Act of

1962, with reference to Notification No.96/2009-Cus dated

11.09.2009 and Notification 2015, as to why differential customs duty

of Rs. 11,11,45,550/- (against Petitioner No.1) and Rs.9,06,17,303/-

(against Petitioner No.2), cumulatively about Rs. 20.18 crore should

not be demanded/recovered, together with applicable interest, in terms

of the bonds executed by them.

Prior litigation before this Court

7. Notably, prior to the issuance of Impugned SCN, the Petitioner

Nos.1 and 2, through Petitioner No.3 had approached this Court on

two occasions in connection with the same AAL and the underlying

EO.

W.P.(C) 5796/2025 Page 4 of 22

8. The first Petition bearing No. W.P.(C) 3686/2021 captioned

Rajesh Gupta & Ors. v DGFT, was filed seeking directions to the

DGFT to permit the Petitioners to complete their EO by purchasing

additional copper of the same grade from the open market, and to

extend the time limit of the licences granted to them. However, the

same came to dismissed as withdrawn by Order dated 23.03.2021,

while granting liberty to make a representation before the DGFT, with

a direction to DGFT to consider and decide the same within 45 days.

9. Following the aforesaid Order, the Petitioners herein filed

representations dated 07.04.2021 and 12.04.2021. In the interregnum,

the Petitioners filed W.P.(C) 5756/2021 captioned Rajesh Gupta &

Ors. v DGFT, seeking extension of EOP by a further period of twelve

(12) months on account of the COVID-19 pandemic and the resultant

force majeure circumstances; a restraint on coercive recovery of

customs duty under Section 2.54 of Foreign Trade Policy (FTP)

during the extended period; permission to make good any shortfall in

raw material by procuring copper from the open market at their own

cost; and parity with the relaxations granted by the Government in

respect of statutory and contractual obligations during the pandemic

and lockdown.

10. This Court by way of its Order dated 03.06.2021, recorded that

the DGFT shall not initiate any coercive action against the Petitioners

until the final decision is rendered in this regard. Subsequently, the

DGFT rejected the representations made by the Petitioners by way of

its Order dated 23.06.2021. Following which, the said Petition was

also dismissed on 08.12.2023, while noting that the DGFT had duly

W.P.(C) 5796/2025 Page 5 of 22

considered and disposed of the Petitioners‟ representations in

accordance with the applicable provisions of the FTP and Handbook

of Procedures.

11. Additionally, it was also noted that the request to procure

copper from the domestic market to make good the shortfall was

rightly rejected in view of the “Actual User” condition governing

AAL. The Court further held that, in exercise of jurisdiction under

Article 226 of the Constitution, it was concerned with the decision-

making process and not with re-appreciation of the merits of the

decision. Finding the decision-making process fair and no violation of

the applicable statutory or policy provisions, the Court declined to

interfere with the DGFT Order dated 23.06.2021.

12. In the intervening period of 12.07.2023 till passing of Impugned

OIO dated 29.11.2024, the adjudication proceedings before the

Respondent proceeded as follows. On 12.07.2023, the Petitioners were

informed of a 08-month extension purportedly granted by the Chief

Commissioner under the first proviso to Section 28(9) of the Act of

1962 and were granted a personal hearing on 31.07.2023. At the

subsequent hearing on 16.08.2023, the Petitioners sought deferment of

proceedings on account of pendency of W.P.(C) 5756/2021 and the

Interim Order dated 03.06.2021 passed by this Court. Consequently,

on 18.08.2023, the Impugned SCN was transferred to the call book

under Section 28(9A)(b) of the Act of 1962.

13. However, upon dismissal of W.P.(C) 5756/2021, the

proceedings came to be revived culminating into the Impugned OIO,

whereby the Adjudicating Authority (AA) confirmed the proposed

W.P.(C) 5796/2025 Page 6 of 22

demand of differential customs duty of Rs.11,11,45,550/- against

Petitioner No.1 and Rs.9,06,17,303/- against Petitioner No.2, together

with applicable interest, under Sections 28(4), 28AA and 28AAA of

the Act of 1962. Aggrieved thereby, the Petitioners filed written

representations dated 11.02.2025 before the AA, seeking recall of the

order, inter alia, on the ground that the Impugned SCN had become

non-est and the adjudication proceedings were barred by limitation

under Sections 28(9) and 28(9A) of the Act of 1962.

14. It is against the above factual backdrop that the Petitioners have

approached this Court seeking our indulgence.

B. SUBMISSION ON BEHALF OF THE PARTIES

15. Before proceeding to deal with the arguments advanced by the

learned counsel representing the Parties, we deem it appropriate to

note that no arguments were advanced by learned counsel representing

the Petitioner on the merits of case. The challenge in the present

Petition, rests solely upon the question of limitation/delayed

adjudication undertaken by the AA under Section 28(9) read with

Section 28(9A) of the Act of 1962.

16. Learned counsel representing the Petitioners has made the

following submissions:

16.1 It is argued that as per Section 28(9)(b) of the Act of 1962, the

Impugned SCN dated 24.06.2022 was required to be adjudicated

within one year, i.e. by 24.06.2023. However, no determination or

notice of personal hearing was made by the AA, with the first such

communication having been issued only on 12.07.2023.

W.P.(C) 5796/2025 Page 7 of 22

16.2 It is contended that the eight (08) months extension granted

under the first proviso to Section 28(9) of the Act of 1962, was itself

invalid, no opportunity of hearing was afforded to them, and no

reasons were recorded for the failure of the proper officer to

adjudicate within the prescribed period. It is urged that, in any event,

even assuming the extension to be valid, the extended period expired

on 24.02.2024, whereas the Impugned OIO was passed only on

29.11.2024.

16.3 Further, it is argued that the transfer of the Impugned SCN to

the Call Book on 18.08.2023 did not suspend or extend the statutory

period, as the Petitioners were neither duly intimated of such transfer

in terms of Para 9.4 of Master Circular No. 1053/02/2017-CX dated

10.03.2017 [hereinafter referred to as „Circular of 2017‟] nor

furnished the reasons for non-determination as contemplated under

Section 28(9A) of the Act of 1962. Consequently, the period from

18.08.2023 to 08.12.2023 could not be excluded in computing

limitation.

16.4 In support of his submissions, reliance has been placed on State

of Punjab v. Bhatinda District Coop. Milk P. Union Ltd.

1

, to argue

that limitation goes to the jurisdiction of the authority and may be

examined in writ proceedings notwithstanding an alternate remedy.

16.5 Further, reliance has also been placed on Shri Ram Agro

Chemical Pvt. Ltd. v. Union of India & Ors.

2

and Vos Technologies

1

(2007) 11 SCR

2

2019 SCC OnLine P&H 4918

W.P.(C) 5796/2025 Page 8 of 22

Private Limited v. Principal Additional Director General

3

to argue

that an extension under Section 28(9) of the Act of 1962 must be

preceded by disclosure of reasons for the delay and an opportunity of

hearing, and the extension must be duly communicated; failure to

comply with the statutory requirements, including those under Section

28(9A) of the Act of 1962, renders the proceedings time-barred.

17. Per contra, learned counsel representing the Respondents have

made the following submissions:

17.1 At the outset, a preliminary objection as to the maintainability

of the present Petition, has been raised. It is argued that in view of the

efficacious alternate remedy of appeal under the Customs Act, 1962,

and on account of lack of any argument pertaining to error of law or

jurisdiction, no interference is warranted by this Court.

17.2. Learned counsel, on merits, has argued that the diversion of

duty-free imported raw material to the domestic market without

fulfilling the EO under the AAL and in breach of the actual-user

condition under Notification 2015, stands admitted in the statements

recorded under Section 108 of the Act of 1962.

17.3 It is contended that the Interim Order dated 03.06.2021,

restraining coercive recovery, was in force prior to issuance of the

Impugned SCN dated 24.06.2022. Consequently, by virtue of Sections

28(9A)(a) and (b) of the Act of 1962, the proceedings were liable to

be placed in the Call Book from inception, and no separate intimation

of extension was necessary, particularly when the pendency of the

3

2024 SCC OnLine Del 8756

W.P.(C) 5796/2025 Page 9 of 22

writ petition and the interim order were brought to the Department‟s

notice by the Petitioners‟ counsel only on 16.08.2023.

17.4 It is further argued that in terms of Section 28(9A) of the Act of

1962, the period prescribed under Section 28(9) commenced only

upon cessation of the reason for non-determination, i.e. on

08.12.2023, when W.P.(C) 5756/2021 was dismissed. Therefore, the

Impugned OIO dated 29.11.2024 was, within the permissible period

ending on 07.12.2024.

17.5 It is argued that despite being afforded repeated opportunities of

hearing on 25.07.2023, 16.08.2023, 13.09.2024, 15.10.2024 and

04.11.2024, the Petitioners either failed to appear or sought

adjournments on the above-mentioned dates. Accordingly, the delay

cannot be attributed to the Respondent, in order to challenge the

Adjudication proceedings undertaken.

17.6 Reliance is placed on Collector of Central Excise, New Delhi

v. Bhagsons Paint Industry (India)

4

, Commissioner, GST, Central

Excise, Commissionerate-II, Chandigarh v. Swati Menthol and

Allied Chemicals Ltd.

5

, and CCE v. M/s Gujarat Ambuja Exports

Ltd.

6

, to contend that delay by itself does not necessarily bar

adjudication and, where no specific limitation applies, the question of

reasonable time must be determined having regard to the facts of each

case.

C. ANALYSIS AND FINDINGS:

4

2003 (158) E.L.T. 129 (S.C.)

5

2023 (385) E.L.T. 642 (S.C.)

6

(2016) 15 SCC 208

W.P.(C) 5796/2025 Page 10 of 22

18. Before proceeding to examine the controversy before us, we

deem it appropriate to reproduce the relevant provisions of the Act of

1962 forming basis of our analysis, which reads as under:

“28. Recovery of duties not levied or not paid or short-levied or

short-paid or erroneously refunded.—

(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 sub-

section (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

(c) the Board has, in a similar matter, issued specific direction or

order to keep such matter pending; 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 sub-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.]”

W.P.(C) 5796/2025 Page 11 of 22

19. At the outset, it is necessary to delineate that the present

Petition raises a challenge to the Impugned OIO principally, and in

substance exclusively, on the ground that the same came to be passed

beyond the period prescribed under Sections 28(9) and 28(9A) Act of

1962, and is, therefore, without jurisdiction. Significantly, the

Petitioners do not assail the substantive findings recorded by the AA

under Sections 28(4), 28AA or 28AAA of the Act of 1962. They have

neither disputed, on merits, the allegations concerning diversion of

duty-free imported material, non-fulfilment of EOs, or breach of the

conditions governing the Advance Authorisations, nor have they

identified any specific factual or evidentiary error in the OIO.

20. The same position emerges from the representation dated

11.02.2025 seeking recall of the Impugned OIO, which is directed

substantially towards limitation, the validity of the extension granted

under the statutory framework and the transfer of the proceedings to

the Call Book. Therefore, the controversy before us, is a narrow one

and principally concerns whether the Impugned OIO was rendered

beyond the statutory period so as to suffer from want of jurisdiction.

21. Before examining the statutory computation, we must highlight

that during the course of arguments, learned counsel representing the

Petitioners, has sought to place reliance upon Supreme Court‟s Order

dated 02.05.2025 passed in SLP(C) No. 5392/2025 captioned Union

of India & Ors. v. GMR Airport Infrastructure Ltd. Relying upon

this Order, the Petitioners have sought deferment of the present

proceedings in view of the following direction issued:

W.P.(C) 5796/2025 Page 12 of 22

“7. According to Mr. N. Venkataraman, the impugned judgment and

order passed by the High Court of Delhi needs to be suspended from

its operation as the same is creating lot of problems for the Revenue.

8. He pointed out that almost 250 matters came to be disposed of

by the Tribunal following the judgment of the High Court of Delhi.

9. Since we are looking into the larger issues involved in this matter,

we may only say that if any matter comes up for hearing before the

Tribunal or any of the High Courts on the subject in question, the

hearing may be deferred till we take an appropriate call in the

matter.

10. List the matter after Summer Vacation.”

22. However, we may also highlight that in its written pleadings,

the Petitioners have sought to rely upon the judgment of this Court in

Vos Technologies (Supra), which is a subject matter of consideration

before the Supreme Court in GMR Airport (Supra), and it was in

furtherance of this consideration that the Order dated 02.05.2025 came

to be passed. In view thereof, we shall now proceed to examine the lis

adjudicated by this Court in Vos Technologies (Supra), to cull out as

to whether the said judgment, and by extension the Order of the

Supreme Court, will be applicable to facts and circumstances,

requiring deferment of the present proceedings.

23. This Court in Vos Technologies (Supra), was dealing with a

batch of Petitions arising out of delayed adjudication in matters

pertaining to the Act of 1962 and Central Goods and Services Tax,

2017. It is in this backdrop that this Court recorded the principal

ground that arose before it, which is as follows:

“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

W.P.(C) 5796/2025 Page 13 of 22

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.”

24. The aforestated makes it evident that the Court was concerned

with the application of the principle of a “reasonable period” to

adjudicatory proceedings which had remained pending for an

inordinately long duration. Since the dispute before us arises out of

Act of 1962, we shall proceed to examine the above-stated judgment

in this limited sense.

25. In substance, the Court therein was confronted with SCNs

which had remained dormant for approximately 15 to 18 years,

followed by repeated and mechanical transfers to the Call Book

without contemporaneous reasons being recorded or communicated to

the noticees. The Court found that such prolonged and unexplained

inaction defeated the legislative object of expeditious adjudication and

effectively converted the Call Book into a mechanism for indefinite

and unaccountable suspension of proceedings.

26. It is against the aforesaid factual backdrop that the Court

examined Section 28 of the Act of 1962. However, the factual

substratum of Vos Technologies (Supra) is materially distinct from

that arising in the present case inasmuch as the Impugned SCN, came

to be issued subsequent to the Finance Act, 2018, which brought

substantial changes to Section 28(9) of the Act of 1962. The

amendment deleted the expression „where it is possible to do so‟,

introduced second proviso to sub-section (9), incorporating a deeming

consequence where adjudication is not completed within the

W.P.(C) 5796/2025 Page 14 of 22

prescribed period, and inserted sub-section (9A), specifically

providing for circumstances in which determination under sub-section

(8) cannot be completed for reasons enumerated therein.

27. On the contrary, the SCNs considered in Vos Technologies

(Supra) had been issued prior to 29.03.2018 and, by virtue of

Explanation 4 to Section 28, continued to be governed by the

unamended Section 28(9) of the Act of 1962, meaning thereby the

2018 amendment did not itself govern the timeline applicable to those

proceedings. Consequently, the decision rested upon the ‘reasonable

period’ principle applicable under the earlier statutory regime,

coupled with the Respondents‟ failure to justify mechanical and

repeated transfers to the call book without recorded reasons or

communication to the noticees.

28. It is for these reasons that the findings in Vos Technologies

(Supra), cannot be said to govern the present proceedings so as to

warrant deferment thereof in terms of the Supreme Court‟s order dated

02.05.2025. It is also relevant to note that the deferment of

proceedings directed by the Supreme Court was occasioned by the fact

that nearly 250 matters had been disposed of by the Tribunal by

placing reliance upon Vos Technologies (Supra). It was in this limited

factual backdrop that the direction of deferment came to be issued.

Having already distinguished the said judgment on the facts and

circumstances arising in the present case, we find no reason to defer

the present proceedings merely on the strength of the aforesaid

direction.

W.P.(C) 5796/2025 Page 15 of 22

29. Turning now to the statutory timeline applicable to the facts of

the present case, it is noted that the Impugned SCN came to be issued

on 24.06.2022 under Section 28(4) of the Act of 1962. Since the

proceedings fall under sub-section (4), the applicable timeline under

Section 28(9) is that prescribed by clause (b) thereof, namely, one (01)

year from the date of notice, extendable by a further period of one (01)

year under the First Proviso. An extension of eight (08) months

granted by the Competent Authority under the First Proviso to Section

28(9) was communicated to the Petitioners vide letter dated

12.07.2023. Accordingly, absent the operation of Section 28(9A), the

proceedings were required to be concluded, as extended, by

24.06.2024.

30. However, the subsequent course of events assumes

determinative significance, since in the intervening period, the

Petitioners themselves, by way of a written reply dated 14.08.2023,

sought deferment of adjudication on account of pendency of W.P.(C)

5756/2021 before this Court and the interim Order dated 03.06.2021

operating therein, whereby the Respondent Department had been

directed to refrain from taking any coercive action. In the said reply,

the Petitioners expressly reserved their right to furnish a detailed reply

upon disposal of the said writ petition. Pursuant thereto, the

proceedings were transferred to the Call Book on 18.08.2023.

31. The Petitioners contend that such transfer neither suspended nor

extended the statutory period, since they were not separately intimated

of the Call Book transfer in terms of paragraph 9.4 of Circular of

2017, nor furnished the reasons for non-determination contemplated

W.P.(C) 5796/2025 Page 16 of 22

under Section 28(9A) of the Act of 1962. Consequently, it is urged

that the period from 18.08.2023 to 08.12.2023 must be counted for

limitation. However, this submission proceeds upon a conflation of

the administrative act of transferring a matter to the Call Book with

the statutory consequence flowing from Section 28(9A) of the Act of

1962.

32. Since the proceedings at this stage are found to be governed by

Section 28(9A) of the Act of 1962, we shall now proceed to examine

the requirements of the said provision, in order to determine whether

the timeline prescribed under the statutory regime was duly adhered to

by the Respondents.

33. Section 28(9A) is a non-obstante provision, dealing with two

facets. Firstly, it addresses a situation where the proper officer is

unable to determine the amount of duty or interest under sub-section

(8) for any of the reasons enumerated in clauses (a) to (d). Secondly,

where such a circumstance arises, the reasons for non-determination

are to be communicated to the person concerned, and the period

prescribed under sub-section (9) is to be reckoned from the date on

which the relevant circumstance ceases to exist. Therefore, the

provision does not, make the Call Book transfer itself the source of

any extension; rather, the statutory consequence flows from the

existence of the circumstance contemplated hereinabove.

34. In the present case, the circumstance contemplated under clause

(b) of Section 28(9A) of the Act of 1962 is squarely attracted,

inasmuch as the issue forming the subject matter of W.P.(C)

5756/2021, namely, Petitioners‟ request for extension of EOP, and

W.P.(C) 5796/2025 Page 17 of 22

permission to procure copper from the open market in substitution of

the duty-free imported inputs, was directly germane to the

adjudication, since the Petitioners‟ liability to differential duty was,

inter alia, dependent upon compliance with the conditions governing

the relevant AAL. As a consequence, the pendency of the said writ

proceedings, coupled with the interim protection operating therein,

constituted the circumstance which prevented the proper officer from

proceeding to a final determination under Section 28(8) of the Act of

1962.

35. Thus, the Call Book entry of 18.08.2023 was merely

consequential to the circumstance already placed before the AA by the

Petitioners themselves. The Call Book was not the source of the

statutory exclusion; it was the administrative manifestation of the fact

that the adjudication could not, at that stage, appropriately proceed.

Therefore, the legal consequence must be traced to Section 28(9A) of

the Act of 1962 and not to the mere fact of transfer to the Call Book.

36. In these circumstances, the Petitioners‟ reliance upon the

Paragraph 9.4 Circular of 2017 does not lead to a different conclusion.

The Circular only regulates the administrative manner in which

matters transferred to the Call Book are to be dealt with and is

intended to secure transparency and accountability. However, absent

an express statutory consequence making such communication a

condition precedent to the operation of Section 28(9A), an

administrative instruction cannot override or displace the statutory

consequence which follows upon the existence of a circumstance

expressly contemplated by the Legislature.

W.P.(C) 5796/2025 Page 18 of 22

37. The requirement of communication under Section 28(9A) of the

Act of 1962 must, however, also be considered in the cumulative

factual matrix arising in the present controversy. That requirement, in

its terms, casts an obligation upon the proper officer to inform the

person concerned of the reason for non-determination, its legislative

purpose being to ensure that the noticee is not left unaware of the

circumstance which has prevented determination under Section 28(8)

of the Act of 1962. In the ordinary case, formal intimation by the

proper officer would be necessary to discharge this obligation.

38. However, in the present case, this requirement stands

substantially satisfied, and indeed its underlying purpose stands fully

served, since it was the Petitioners themselves who brought to the

notice of the Respondents the pendency of W.P.(C) 5756/2021 and the

interim order passed therein and identified that circumstance as the

very ground for seeking deferment. Therefore, the Petitioners were,

fully cognisant of the circumstance which impeded the AA from

proceeding with the determination, more so than would ordinarily

follow from a formal communication issued by the officer.

39. Having themselves relied upon the pendency of the said

proceedings and the protection operating thereunder, the Petitioners

cannot be considered to have been unaware of the same. Therefore,

this is not a case of literal compliance with the communication

requirement in the sense of intimation issuing from the proper officer;

it is a case where the object of that requirement stands independently

and fully achieved by the noticee‟s own conduct.

W.P.(C) 5796/2025 Page 19 of 22

40. The position would undoubtedly be different where the

Department sought to rely upon an undisclosed circumstance or where

proceedings were kept dormant for years without the noticee being

apprised of the reason for such inaction. That, however, is not the case

before us. The circumstance relied upon by the Respondents was

neither subsequently devised nor retrospectively invoked; it was the

very circumstance expressly pleaded and relied upon by the

Petitioners themselves. Therefore, it is the underlying statutory

circumstance, and not the administrative fact of Call Book transfer,

which governs the computation.

41. In the present case, the circumstance falling within clause (b)

ceased to exist on 08.12.2023, when W.P.(C) 5756/2021 came to be

dismissed by this Court. Consequently, it is from 08.12.2023 that the

02 years statutory period contemplated under sub-section (9) is

required to be reckoned.

42. On such computation, the base period of one year under clause

(b) of Section 28(9) of the Act of 1962 would have expired on

08.12.2024. Since the Impugned OIO came to be passed on

29.11.2024, within this unextended base period, it is unnecessary for

us to examine whether, or on what basis, the extension earlier granted

under the First Proviso would attach to the freshly reckoned period

commencing 08.12.2023. The time during which the proceedings

remained impeded by the circumstance contemplated under clause (b)

of Section 28(9A) could not, in any event, be reckoned against the

Respondents. The statutory clock, properly computed, commenced

only upon cessation of that circumstance on 08.12.2023; accordingly,

W.P.(C) 5796/2025 Page 20 of 22

the Impugned OIO was passed within the period prescribed by law,

and the Petitioners‟ challenge founded upon alleged expiry of the

statutory timeline is without merit.

43. Having concluded that the Impugned OIO does not suffer from

want of jurisdiction on grounds of limitation, we consider it

appropriate to briefly notice, as an independent and alternative

ground, certain aspects of the Petitioners‟ conduct which would in any

event disentitle them to discretionary relief under Article 226 of the

Constitution, a ground distinct from, and not necessary to, our finding

on limitation above.

44. The jurisdiction exercised by a writ Court under Article 226 of

the Constitution is equitable and discretionary in nature and cannot be

claimed as a matter of right. Ordinarily, where an efficacious

alternative statutory remedy is available, the Court would be slow to

exercise its writ jurisdiction, save in recognised exceptions. The

exercise of such jurisdiction may also be declined where the conduct

of the Petitioner is such that equitable relief ought not to be granted,

including where material facts have not been candidly disclosed.

45. In this regard, we note that the Petitioners have not, at any stage

of the present proceedings, sought to controvert the substantive

findings recorded in the Impugned OIO concerning diversion of the

duty-free imported goods, breach of the conditions governing the

Advance Authorisations, and consequent fraudulent evasion of duty,

findings which, on the record, resulted in a duty demand of

approximately Rs. 20.18 crore together with interest, redemption fines

and penalties. Their reply dated 14.08.2023 merely sought deferment

W.P.(C) 5796/2025 Page 21 of 22

of adjudication pending W.P.(C) 5756/2021 and expressly reserved

the right to file a substantive reply thereafter; no such reply was,

however, filed even after that writ petition came to be dismissed on

08.12.2023.

46. Further, and it is of particular significance, that the Impugned

OIO records a position also reflected in the Counter Affidavit, that the

dismissal of W.P.(C) 5756/2021 was not communicated to the AA by

the Petitioners, and that the Respondent came to learn of it only in the

course of its own review of matters pending in the Call Book. Having

sought deferment on the express basis of the pendency of that Petition

and having represented that a substantive reply would follow upon its

disposal, the Petitioners did not themselves intimate the AA of the

cessation of that very circumstance.

47. This conduct is relevant not to the statutory computation, which

stands concluded above, but to the equitable discretion of this Court. It

is in this limited context that the principle of approbate and reprobate

stands attracted. A party cannot, having invoked a circumstance as the

basis for keeping adjudication in abeyance, and having chosen not to

answer the substantive allegations during that period, subsequently

seek to derive an equitable advantage, by way of extraordinary writ

relief on limitation grounds alone, from the very passage of time

occasioned by the deferment it had itself sought.

D. CONCLUSION:

48. For the foregoing reasons and having found that the Impugned

OIO was passed within the period prescribed under Sections 28(9) and

W.P.(C) 5796/2025 Page 22 of 22

28(9A) of the Act of 1962, and, in any event and independently,

having regard to the availability of an efficacious alternative statutory

remedy and the circumstances surrounding the Petitioners‟ conduct

during the adjudication proceedings, we are not inclined to interfere

with the Impugned OIO/ Impugned SCN.

49. Accordingly, the present Petition, along with pending application,

is dismissed.

50. The Petitioners shall be at liberty to avail the statutory appellate

remedy available to them in accordance with law and to raise therein

all grounds and contentions available to them in respect of the merits

of the case.

51. It is clarified that no observation contained herein shall

prejudice the consideration of such contentions by the competent

Appellate Authority.

ANIL KSHETARPAL , J.

SHAIL JAIN, J.

SEPTEMBER 07, 2026

s.godara/hr