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TMI Blog2021 (4) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in Special Civil Application No.6781 of 2020 and Special Civil Application No.6782 of 2020, a detailed representation was sent to the respondent-Department on 20.05.2020 by the Proprietor, applicant original petitioner, making a grievance that the directions of the Court has not been complied with. 2. It is the grievance on the part of the applicant that when specific details were sought for about the pending matter under the Right to Information Act by application dated 15.06.2020, it was realized that pendency of Departmental Appeal was the reason for not proceeding with the matter and for not complying with the directions issued by this Court. The applicant, therefore, is before this Court seeking revival of the original matters. 3. This Court on 29.01.2021, by issuing notice, passed the following order: 1. The applicant original petitioner is the proprietor of M/s.Lazio Exports, Surat, and on one of the co notice in the show cause notice dated 31.03.2005, which was given on the basis of the intelligence collected by the officers of the Directorate of the Revenue Intelligence, Surat. 1.1 The applicant has approached this Court with the grievance that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by holding thus: 14.1 In the case of Siddhi Vinayak Syntex Pvt.Ltd. (supra), this Court extensively examined the maintainability of writ petition in wake of the existence of alternative remedy, where there was a delay of adjudication of show cause notice after 17 years. The department's contention was that the show cause notice remained undecided as it had been consigned to call book in view of CBEC Circular 162/73/95 CX dated 14.12.1995 to await outcome of a similar case. The Court held that consistent approach adopted by different High Courts is that the revival of the proceedings after long time gap without any proper explanation is unlawful and arbitrary. The Court also held that the said circular cannot be said to have issued in exercise of powers under section 37B of the Central Excise Act as concept of call book did not relate to uniformity in classification of excisable goods, or to levy of excise duties on such goods. Instructions to consign a case to call book relatable to adjudicatory process, and do not provide for matters, any incidental consistent with or the supplemental Act or Rules thereunder. The Court held that the CBEC is not empowered to issue instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty years after the original show cause notice, which cannot be permitted. 17. In Hindustan Lever Limited v. Union of India (supra), the Bombay High Court held that the extent of delay which had occurred in adjudication upon the issues was also relevant. The court observed that it was well-settled that the adjudication proceedings have to be culminated within a reasonable time and if it is not done so, they stand vitiated on the said ground. The court observed that, normally for compliance of the principles of natural justice it would have remanded the matter back to the concerned authority. However, considering the time lag that has elapsed from the date of first hearing granted to the petitioner, since there had been undue delay in deciding the said proceedings, it did not deem it fit to remand the matter to the concerned authority of the respondents. The court, accordingly, set aside the impugned order. 18. In R. M. Mehrotra v. Enforcement Directorate (supra), the Delhi High Court held that the revival of the proceedings after a time gap of ten years, without notice of hearing disclosing any reason for the delay, is not a mere matter of impropriety; the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do so firstly, for the purpose of uniformity in the classification of excisable goods; secondly with respect to levy of duties of excise on such goods; and thirdly, for the implementation of any other provision of the Act. Insofar as the concept of call book is concerned, the same evidently does not relate to uniformity in the classification of excisable goods, or to levy of duties of excise of such goods. Insofar as the implementation of any other provision of this Act is concerned, the concept of call book, cannot be traced to any other provision of the Act nor does it appear to be relatable to the implementation of any other provision of the Act. Evidently, therefore, the circular dated 14.12.1995, cannot be said to have been issued in exercise of powers under section 37B of the Act. 22. On behalf of the respondents, reliance has also been placed upon rule 31 of the Central Excise Rules, which makes provision for power to issue supplementary instructions and lays down that the Board or the Principal Chief Commissioner or Chief Commissioner, as the case may be, or the Principal Commissioner or Commissioner, as the case may be, may issue written instructions providing for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of duty should be determined within the above time frame, viz. Six months from the date of the notice in respect of cases falling under subsection (1) and one year from the date of the notice in respect of cases falling under subsection (4) or sub-section (5) . When the legislature has used the expression where it is possible to do so , it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been dropped by the adjudicating authority, and the Appellate Tribunal had dismissed the appeal, albeit on grounds other than on merits. 26. Moreover, as is evident from the facts noted hereinabove, the respondents while consigning the matter to the call book did not deem it fit to inform the petitioner about it. Since in other cases, such proceedings had been dropped, the petitioner had reason to form a bona fide belief that the proceedings in its case had also been dropped. During the interregnum the petitioner s position has changed considerably. Ln view of the fact that the factory of the petitioner company has been closed down and sold, it cannot be gainsaid that even if the petitioner was served with the notice of personal hearing, it would be difficult for it to defend the case inasmuch as in view of the lapse of time and intervening circumstances, the evidence might have been lost. After seventeen years, the persons who were conversant with the case may not be available, documentary evidence may have been displaced. Thus, the delay in deciding the proceedings, that too without bringing it to the notice of the petitioner that the case was transferred to the call bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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