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TMI Blog2017 (12) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal before the Supreme Court. However, the SLP is confined to whether the circular dated 14.12.2015 issued by CBEC (pertaining to keeping the case in call book) is in conformity with the provisions contained in section 37B of the Central Excise Act. Petition allowed. - SPECIAL CIVIL APPLICATION NO. 9298 of 2017 TO SPECIAL CIVIL APPLICATION NO. 9301 of 2017 - - - Dated:- 4-12-2017 - HONOURABLE MR.JUSTICE AKIL KURESHI AND HONOURABLE MR.JUSTICE A.Y. KOGJE MR PARITOSH GUPTA WITH MR PARESH M DAVE, ADVOCATE FOR THE PETITIONER MS AVANI S MEHTA, ADVOCATE FOR THE RESPONDENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These petitions arise in common background. With minor cosmetic changes, facts are similar in all. We may refer to facts from Special Civil Application No.9298/2017. 2. Petitioner no.1 is a company engaged in manufacturing textile goods like processed fabrics, manmade fabrics, etc. Petitioner no.2 is a director of the petitioner no.1 company. The respondents, the Customs authority, issued a show cause notice dated 22.8.2002 to the petitioners why differential duty of excise to aggregate of customs duty amounting to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions were raised on facts. The adjudicating authority however, proceeded to pass impugned order dated 31.1.2017 rejecting the petitioners' request for indefinite postponement of the hearing. He noted that in the reply to the show cause notice which the petitioners opposed on 2.10.2002, no such request was made. In the written submissions filed on 6.10.2016 also, no such request was made. 4. This order, the petitioners have challenged in the present petition. Their main ground is that keeping the proceedings pending for years together without any intimation to the petitioners and reactivating the same after a gap of nearly 14 years has resulted in miscarriage of justice. The petitioners were unable to defend themselves. The petitioners relied on the decision of this Court in case of Siddhi Vinayak Syntex Pvt. Ltd. v. Union of India and others (Special Civil Application No.19437/2016, judgment dated 7.3.2017). Counsel pointed out that the decision was followed on later in case of Swagat Synthethics and others v. Union of India (Special Civil Application No.9510/2017, judgment dated 20.11.2017) in somewhat similar background. 5. On the other hand, department has oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued, provided for issuance of notice within six months from the relevant date in ordinary cases and within five years in case where the extended period of limitation is invoked. Section 11A thereafter has been amended from time to time and in the year 2011, various amendments came to be made in the section including insertion of subsection (11) which provides that the Central Excise Officer shall determine the amount of duty of excise under subsection (10) ( 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 subsection (4) or subsection (5). 24. Thus, with effect from the year 2011 a time limit has been prescribed for determining the amount of duty of excise where it is possible. It cannot be gainsaid that when the legislature prescribes a time limit, it is incumbent upon the authority to abide by the same. While it is true that the legislature has provided for such abiding by the time limit where it is possible to do so, subsection (11) of section 11A of the Act gives an indication as to the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBEC. Transferring matters to the call book being contrary to the provisions of law, the explanation put forth by the respondents for the delay in concluding the proceedings pursuant to the show cause notice 3.8.1998 cannot be said to be a plausible explanation for not adjudicating upon the show cause notice within a reasonable time. In view of the settled legal position, as propounded by various High Courts, with which this court is in full agreement, the revival of proceedings after a long gap of ten to fifteen years without disclosing any reason for the delay, would be unlawful and arbitrary and would vitiate the entire proceedings. 25. Examining the matter from another angle, it is the stand of the respondents that the matter was kept in the call book for all these years to await the outcome of a similar case in the case of M/s. Siddharth Petro Products Limited and others, which was pending before the Appellate Tribunal. In such a situation, the decision in the case of the petitioner should be governed by the decision of the Appellate Tribunal. However, the respondents after keeping the matter in the call book for fifteen years, have thereafter chosen not to follow the outco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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