9911796707
TMI Blog2017 (12) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for fresh consideration. Petition allowed in part and part matter on remand. - SPECIAL CIVIL APPLICATION NO. 9510 of 2017 - - - Dated:- 20-11-2017 - HONOURABLE MR.JUSTICE AKIL KURESHI AND HONOURABLE MR.JUSTICE A.Y. KOGJE MR PARITOSH GUPTA WITH MR AMAL PARESH DAVE MR PARESH M DAVE, ADVOCATE FOR THE PETITIONER MR DEVANG VYAS, ADVOCATE, MR SUDHIR M MEHTA, ADVOCATE FOR THE RESPONDENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioners-assesses have challenged an order-in-original dated 28.02.2017 as at Annexure D to the petition in following background: 2. Petitioners have set up a 100% Export Oriented Unit at Kandala KFTZ. Two show-cause notices dated 15.01.2003 and 28.02.2003 came to be issued against the petitioners in connection with the activities carried out by the petitioners in the said unit mainly alleging that the petitioners had cleared certain processed fabrics in domestic tariff area without payment of duty. For reasons which are not apparent on the record, these two show-cause notices were kept dormant which in the department's parlance is referred to as 'the call book'. Yet another notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connected proceedings to believe the allegations of clandestine removal of goods without payment of duty. Consistently the petitioners had been demanding cross examination of such witnesses. Without dealing with such request, the final order of adjudication came to be passed in which, no such cross-examination was granted. According to the petitioners, therefore, the breach of natural justice has occurred at two stages. Firstly, in not deciding the request of the petitioners for cross-examination before final adjudication and secondly by relying on such statement of witness without subjecting them for cross-examination. 7. On the other hand, learned advocate Mr. Sudhir Mehta opposed the petition contending that the Tribunal having remanded the proceedings, all three show-cause notices were taken up for common adjudication after giving full opportunity to the petitioners to defend themselves the impugned order came to be passed against such order statutory appeal lies. 8. We may split consideration of the impugned order in two parts. Insofar as the show-cause notices dated 15.01.2003 and 28.02.2003 are concerned, the issue is covered by the judgement of this Court in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (5) . When the legislature has used the expression where it is possible to do so , it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witnesses may have to be examined, the record of the case may be very bulky, huge workload, non-availability of an officer, etc. which are genuine reasons for not being able to determine the amount of duty within the stipulated time frame. However, when a matter is consigned to the call book and kept in cold storage for years together, it is not on account of it not being possible for the authority to decide the case, but on grounds which are extraneous to the proceedings. In the opinion of this court, when the legislature in its wisdom has prescribed a particular time limit, the CBEC has no power or authority to extend such time limit for years on end merely to await a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book did not deem it fit to inform the petitioner about it. Since in other cases, such proceedings had been dropped, the petitioner had reason to form a bona fide belief that the proceedings in its case had also been dropped. During the interregnum the petitioner s position has changed considerably. ln view of the fact that the factory of the petitioner company has been closed down and sold, it cannot be gainsaid that even if the petitioner was served with the notice of personal hearing, it would be difficult for it to defend the case inasmuch as in view of the lapse of time and intervening circumstances, the evidence might have been lost. After seventeen years, the persons who were conversant with the case may not be available, documentary evidence may have been displaced. Thus, the delay in deciding the proceedings, that too without bringing it to the notice of the petitioner that the case was transferred to the call book and was therefore pending, causes immense prejudice to the petitioner. The revival of the proceedings, therefore, is in complete breach of the principles of natural justice and hence, the impugned show cause notice and the order-in-original passed pursuant ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
