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TMI Blog2019 (6) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... e has never delayed any proceedings pending adjudication. The Department has failed to put forth any justification or show any explanation for delay in adjudicating the show cause notice even after it had retrieved the case from the Call Book on 28-9-2009 till the passing of the order impugned in this petition. As such, it has to be adjudicated within reasonable time and in absence of any proper explanation thereof, it is unlawful and arbitrary - SCN cannot be sustained. Alternative remedy of appeal - HELD THAT:- Since the impugned order is quashed and set aside on the ground of delay in adjudication proceedings, the argument of alternative remedy raised by the respondent is rejected as the proceedings itself is vitiated for delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under their different brand names. The petitioner is also registered with the Department and is availing SSI exemption for their own goods and it clears the Medicaments on payment of duty for loan licensees. Since the goods manufactured for loan licensees were branded goods, which was not eligible for SSI exemption, the petitioner paid the duty on those branded goods and availed SSI exemption for their own goods during the period 2001-02 to 2005-06. 4.1 On the basis of audit objection taken in the case of some other assessee, Department took a view that as the Unit of the petitioner is situated in rural area, as per paragraph 4 of the Notification No. 8/2001, dated 1-3-2001, 8/2002, dated 1-3-2002 and 8/2003, dated 1-3-2003, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the extended period of limitation. 4.3 The petitioner contended that instead of following the binding precedent, the adjudicating authority had transferred the case to Call Book on 4-10-2007. It is asserted in the petition that the said fact was never informed to the petitioner. In short, the petitioner had never requested the adjudicating authority to transfer it to Call Book awaiting any decision, which might help him. From the impugned order, it also appears that the case had been retrieved from Call Book by the Commissioner of Central Excise, Ahmedabad-III on 28-9-2009. 4.4 Even after that, no adjudication took place in the case of the petitioner pursuant to the show cause notice even up to 2018. In the meanwhile, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by e-mail requesting respondent No. 2 to drop the notice considering the judgment delivered by the Hon ble Supreme Court in the case of M/s. Nebulae Health Care Limited. If that is so, there should not have been assertion in the affidavit, affirmed by respondent No. 2 dated 4-9-2018, that the petitioner neither appeared nor sought time, and therefore, from the available record the order impugned was passed. If at all it is replied by the tax consultant via e-mail, relying on some decision, it should have been reflected in the first affidavit itself. Be that as it may. Even no service of such response through e-mail is reflected in the order impugned. Since no notices for personal hearing is issued as per procedure prescribed under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs without any adjudication, even after retrieving the case from the Call Book in the year 2009 the adjudication into the case did not conclude till 24-5-2018, the petitioner cannot be blamed for non-adjudication of the show cause notice as he had never requested to transfer it to the Call Book or he has never delayed any proceedings pending adjudication. In short, the petitioner is not responsible for the delay in adjudication at all. As such, delay in adjudication is not at all even explained by the Department. There shall not be any hanging sword, without any justifiable reasons on the petitioner to adjudicate the show cause notice at the whims of the Department. It is well settled in number of decisions that the adjudication proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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