9911796707
TMI Blog2019 (6) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... - decided in favor of appellant. - R/SPECIAL CIVIL APPLICATION NO. 8933 of 2018 - - - Dated:- 6-2-2019 - MR. S.R. BRAHMBHATT AND MR. A.G. URAIZEE JJ. Appearance: MR DHAVAL SHAH (2354) for the PETITIONER(s) No. 1,2 MR NIRZAR S DESAI (2117) for the RESPONDENT(s) No. 1 RULE SERVED (64) for the RESPONDENT(s) No. 2,3,4 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE A.G.URAIZEE) JUDGMENT 1. The petitioners have preferred present petition under Article 226 of the Constitution of India for the following reliefs: (a) That Your Lordships may be pleased to issue a Writ of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner's case and quash and set aside the impugned Show Cause Notice F. No.DGCEI/AZU/37-07/2002 dated 30.09.2003; Order in Original No.07/ADJ/DEM/JCVVP/ 17-18 dated 28.07.2017 and Order in Appeal No.VAD-EXCUS-002-APP-834-835/2017-18 dated 24.01.2018; (b) that pending hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner No.2. 2.6 Therefore, the petitioner filed appeal and same was dismissed by respondent No.3 on 24.01.2018. 3. We have heard Mr. Dhaval Shah, learned advocate for the petitioners and Mr. Nirzar Desai, learned advocate for the respondent No.1. 4. Mr. Dhaval Shah, learned advocate for the petitioners submitted that the show cause notice was issued on 30.09.2003 and thereafter, no adjudication proceedings were conducted or concluded by the concerned Authority within a reasonable period and after a very long period of 14 years, the case was taken up for adjudication by the Authority. There was no reason for the respondent Authority to not complete the adjudication of the show cause notice and therefore, the action reviving the adjudication of the case that was kept pending for than 14 years is in gross violation of the principles of natural justice. He further submitted that the issue involved in the present petition is no longer res integra and the show cause notice issued by the respondent is in clear breach of the statutory mandate of Section 11A(11) of the Customs Act and can no longer be sustained. In support of his submissions he placed reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents that on 30.09.2003, the show cause notice was issued and thereafter, nothing has been done by the respondents. Thereafter, on 28.07.2017, after a period of 14 years, the respondents passed the order by confirming the demand against the petitioners without hearing the petitioners. Thereafter, the petitioners preferred appeal and same was also dismissed on 24.01.2018. The act on the part of the respondents of keeping the impugned show cause notice in call book for unduly long period, without disclosing cogent reason for delay is arbitrary in exercise of powers and is also in violation of provisions of Section 11A of the Customs Act. It would in our opinion vitiate the entire proceedings. 8. Similar issue raised for consideration before this Court in the cases of M/s. Siddhi Vinayak Syntex Pvt. Ltd. (supra), more particularly paras 23 and 24, which read as under: 23. Insofar as the show cause notice in the instant case is concerned, the same has been issued under section 11A of the Act. Proceedings under section 11A of the Act are adjudicatory proceedings and the authority which decides the same is a quasi-judicial authority. Such proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 decision in another case. The adjudicatory authority is required to decide each case as it comes, unless restrained by an order of a higher forum. This court is of the view that the concept of call book created by the CBEC, which provides for transferring pending cases to the call book, is contrary to the statutory mandate, namely, that the adjudicating authority is required to determine the duty within the time frame specified by the legislature as far as possible. Moreover, as discussed hereinabove, there is no power vested in the CBEC to issue such instructions under any statutory provision, inasmuch as, neither section 37B of the Central Excise Act nor rule 31 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd (supra), Alidhara Textile Engineers Ltd. (supra) and other decisions cited as bar. 11. The ground of alternative remedy is also does not impress this Court in any manner, as there is clear violation of principles of natural justice, which cannot be overlooked by any authority, therefore, this ground is also not available to respondent. 12. Learned counsel for the respondent attempted to develop the ground for resisting this petition based upon plea of prejudice. We are of the view that said ground would also not be available to the respondent, as notice dtd 22.8.2002 had not been acted for long long period of 17 years, that in itself is sufficient to accept and justify the plea of prejudice without any further probing into the matter. The resurrection of notice dated 22.8.2002 assuming for the sake of convenience without admitting that was admittedly after subsequent notice, then also, in view of established principles of law and provisions of statute, the said resurrection would be not permissible in light of decisions cited hereinabove. 10. In our view, the issue involved in this petition is therefore, squarely covered by the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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