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TMI Blog2021 (2) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... s are borrowed from CWP No.19815 of 2020. The petitioner-private limited company during the period 2012-2013 vide twenty two (22) Bills of Entry, imported "Pressed Distillated", which the respondent provisionally assessed in terms of Section 18(1)(b) of the Customs Act 1962 (for short, "Act") and drew representative samples for testing from laboratory. However, after expiry of 8-9 years from the date of filing of bill of entry, the respondent has issued impugned notice(s) for framing final assessment according to Section 18(2) of the Act, despite the orders of this Hon'ble Court dated 31.08.2018 passed in CWP No.4134 of 2017 regarding quashing of show cause notice. Hence, the present writ petition(s). Learned counsel for the petitioner submits that show-cause notice was issued on 20.05.2010 and a period of more than 10 years has elapsed, still it has not been adjudicated upon without any fault on the part of the petitioner. He has placed reliance on Section 11 A of the 1944 Act which deals with recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. Sub section (11) thereof provides that as far as possible in normal cases, the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (365) ELT 77 and an appeal has been filed before Hon'ble the Supreme Court, which is still pending decision. Learned counsel further submits that the provisions of Section 11-A of the Act only provide that order should be passed within the period prescribed, as far as possible. There is no definite time limit prescribed. In any case, the petitioner will not suffer any prejudice as he will be afforded due opportunity before passing order against him. The matters which were transferred to the call book have now been taken up in view of the revised Circular No. 1023/11/2016- CX dated 8.4.2016 and thereafter notices had been issued to the petitioner for hearing. We have heard learned counsel for the parties and perused the record. Admittedly, in the present case Bills of Entry were filed 8-9 years back from the date of impugned notice(s) and neither there was any petition of petitioners pending before Competent Court nor was any stay of any court, thus, there was no reason to withhold framing of final assessment. The contention of learned counsel for the respondents that the department has gone up in appeal before the Hon'ble Supreme Court also does not carry any substance s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1AA and a penalty equivalent to the duty specified in the notice. xx xx xx (11) The Central Excise Officer shall determine the amount of duty of excise under sub-section (10)- (a) within six months from the date of notice where it is possible to do so in respect of cases falling under sub-section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4) or subsection (5)." 13. Similar issue was considered by Gujarat High Court in M/s. Siddhi Vinayak Syntex Private Limited' s case (supra). Judgments of different High Courts were referred to and it was summed up that delay in conclusion of proceedings pursuant to show cause notices after a long gap without proper explanation, is unlawful and arbitrary. The Court further examined the fact as to whether transfer of proceedings to call book in view of circular dated 14.12.1995 can be said to be a reasonable explanation. The opinion expressed was that the mandate of law cannot be diluted by issuing circular especially when there is no power to issue such directions regarding transfer of cases to call book. Relevant paras 23 and 24 thereof are extracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 C.B.E. & C. 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 C. B. E. & C., 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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