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TMI Blog2019 (1) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 21-1-2019 - Mr. S.R.Brahmbhatt and Mr. A.G.Uraizee, JJ. Mr Paritosh Gupat For Gupta for the Petitioner. Viral K Shah(5210) for the Respondent. ORAL JUDGMENT Mr. A.G.Uraizee 1. Rule. Learned advocate Mr. Viral Shah waives service of Rule on behalf on behalf of the respondent No.2. 2. With the consent of the learned advocates for the parties, the mater is taken up for final disposal. 3. The petitioners have preferred present petition under Article 226 of the Constitution of India for the following reliefs: (a) Your Lordships be pleased to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ or order quashing impugned show cause notice dated 25.9.2002 (Annexure A hereto). (b) Your Lordships be pleased to restrain the respondents, their servants and agents from taking any further action as regards impugned show cause notice dated 25.09.2002 (Annexure A hereto) 4. The background facts leading to filing of this petition as could be gathered from the memo of the petition needs to be set out as under: 4.1 The petitioner No.1 Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notice and adjudication orders in the aforesaid cases involving the same dispute of duty on draw winding of yarn because adjudication proceedings were revived in such cases after several years. The petitioner No.1 Company filed reply to the show cause notice issued by the respondent and thereafter, on 12.07.2003, the petitioner No.1 filed its written submissions. 4.7 Since the petitioner Company did not hear anything from the department after filing of their reply on 12.07.2003, and a period of approximately 15/16 years has passed thereafter and no steps have been taken by the concerned respondent for proceeding with the adjudication of impugned show cause notice, the petitioners are, therefore constrained to file the present petition seeking relief of quashment of the impugned show cause notice. 5. We have heard Mr. Paritosh Gupta for Gupta Law Associates, learned advocate for the petitioners and Mr. Viral K. Shah, learned advocate for the respondent No.2. 6. Mr. Paritosh Gupta, learned advocate for the petitioners submitted that the show cause notice was issued on 25.09.2000 and thereafter, no adjudication proceedings were conducted or concluded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d M/s. Parimal Textiles (Supra) etc. 9. In our view, the issue involved in this petition is therefore, squarely covered by the decisions of this Court and the impugned show cause notice dated 25.09.2002 cannot be permitted to be processed further and is also required to be quashed and set aside. 10. Similar issue raised for consideration before this Court in the cases of Parimal Textiles Vs. Union of India reported in 2018(8) G.S.T.L. 361 (Guj.) as well as 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 proceedings are strictly governed by the statutory provisions. Section 11A of the Act as it stood at the relevant time when the show cause notice came to be issued, 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 invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, 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 rules, envisage issuance of such directions. The concept of call book is, therefore, contrary to the provisions of the Central Excise Act and such instructions are beyond the scope of the authority of the CBEC. Transferring matters to the call book being contrary to the provisions of law, the explanation put forth by the respondents for the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 12. It is also undisputed fact that the respondents after keeping the impugned show cause notice in the call book, have not chosen to follow up it for unduly long period. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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