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TMI Blog2018 (1) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars of the Board, if any. Petition allowed. - Writ Petition Nos. 8881 & 9870 to 9872 of 2017 & WMP. Nos. 9789, 9790 & 10859 to 10864 of 2017 - - - Dated:- 2-1-2018 - T. S. Sivagnanam, J. For the Petitioner : Mr. T. Ramesh For the Respondent : Mr.Rabu Mahohar, SPC and Dr.S.Seethalakshmi, SPC ORDER Heard both. By consent, the writ petitions are taken up for joint disposal. 2. The petitioner is a company registered under the Companies Act, 1956, engaged in the manufacture of pharmaceutical products. The challenge in these writ petitions is to show cause notices dated 14.11.1995 and 09.12.1995. 3. The preliminary objection raised by the learned Senior Panel Counsel for the Revenue is with regard to the maintainability of the writ petitions contending that writ petitions against show cause notices are not maintainable, as the petitioner should be relegated to the Authority concerned to participate in the personal hearing and contest the matters on merits. 4. The preliminary objection raised by the Revenue is not impressive for the reason being that the show cause notices are dated 14.11.1995 and 09.12.1995 and that the adjudication is sought to be do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here it is possible to do so, in respect of cases falling under Sub-Section (4). 9. In terms of the above provision, in respect of cases falling under Section 11(1) of the said Act, the period stipulated is six months and in respect of cases falling under Sub-Section (4) of Section 11A of the said Act where extended period of limitation is invoked, the period is one year. 10. The learned Senior Panel Counsel for the Revenue would contend that both in Clauses (a) and (b) of Section 11A(11) of the said Act, it has been provided that time limit has to be adhered to only in cases where it is possible to do so and not a rigid time frame is fixed for the Central Excise Officer to effect recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Thus, the respondent seeks to justify their action in attempting to adjudicate the show cause notices after a period 22 years by referring to the expression 'where it is possible to do so' and would state that in the instant case, it was meant to adjudicate the show cause notices for the reasons set out in the counter. 11. Admittedly, in the impugned show cause notices, there is no indicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a sudden, a notice was issued to the petitioner on 28.2.2017 directing them to appear for a personal hearing on 22.3.2017. This has necessitated the petitioner to come before this Court. 15. When the cases came up for hearing on the earlier dates, this Court directed the respondent to file an affidavit to show as to whether the transfer of the case to the Call Book was informed to the petitioner. Accordingly, the additional counter affidavit dated 13.11.2017 has been filed accepting the fact that there is no intimation to the assessee about the transfer of the show cause notices to the Call Book. Thus, absolutely the petitioner had no knowledge as to what was the reason for not passing the adjudication order on the impugned show cause notices. Though an opportunity of personal hearing was offered on 19.1.1996, it has to be seen as to whether this could be a reason for not being able to pass an order within the time permitted under Section 11A(11)(a) of the said Act. 16. Admittedly, the reason for impossibility of adjudicating the show cause notices cannot be put against the assessee, as the Department was contesting the audit objections. Therefore, this Court is convinced t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is seen that on the date when personal hearing was conducted, the matter has already been transferred to the Call Book and was kept pending. If that be so, the assessee ought to have been put on notice in respect of the factual position, which was not done. Thus, it is clear that the respondent, who had been then adjudicating the proceedings, proceeded with the adjudication despite the fact that they were contesting the audit objections. The reason now sought to be given for resurrecting the matter after 22 years is absolutely fallacious and cannot be accepted. Hence, the impugned show cause notices are liable to be quashed. 20. It is important to note that the Central Board of Excise and Customs issued a circular bearing Circular No.1053/02/2017-CX dated 10.3.2017, which is in supersession of the earlier circular, which dealt with several issues and one such issue pertains to Issue and Communication of Order as per Paragraph 14.10, which states that in all cases where personal hearing has been concluded, it is necessary to communicate the decision as expeditiously as possible, but not later than one month in any case, barring in exceptional circumstances to be recorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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