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TMI Blog2021 (5) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... ave challenged the Demand Notice dated 2.8.2007 mainly on the ground that after the issuance of said notice, no steps worth the name have been taken by the respondent authorities for adjudicating the said notice. Perceptibly, not a single communication has been addressed by the respondent to the petitioners, intimating it about keeping the show-cause notice in abeyance. Furthermore, in the reply filed by the respondent, limited explanation is offered in paragraph 3.3 to the effect that due to reorganization of the department, shifting of the office documents have taken place, and during such shifting, the documents might have been misplaced. It is further averred that the office has tried to find out the documents related to the concerned Demand Notice dated 2.8.2007, however, the same are not traceable. Clearly, the Revenue has thoroughly failed to justify its lapse for not adjudicating the Demand Notice dated 2.8.2007 for more than 11 years. Quite apart, as is discernible from the contents of paragraph 3.3 of the reply, during the shifting of the office, papers pertaining to the Demand Notice dated 2.8.2007 are not traceable. Thus, allowing the Revenue at this stage to proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as 'the Demand Notice'). This led to issuance of the Demand Notice dated 2.8.2007, demanding duty to the tune of ₹ 25,03,414/- on the basis of bill of entries filed for imported second hand equipment. It has been alleged that the petitioner No.1 company in spite of availing the benefit of Notification No.27/2002, have debited the same duty under DFCE Certificate in terms of Notification No.54/2003 Cus., dated 1.4.2003. In the Demand Notice, it is the case of the Revenue that the capital goods imported by the petitioner No.1 company on re-export basis and assessed to duty at concessional rate under Notification No.27/2002, the ownership of the goods was not vested in the petitioner and in view of the condition No.2 of the Notification No.54/2003 dated 1.4.2003 as amended, the goods so imported against the license issued to the petitioner No.1 company shall not be transferred or sold. It is alleged that in view of the same, the petitioner has contravened the provisions of DFSECC Scheme benefit of exemption under the Notification No.54/2003 awarded was not admissible. 3.3 In response to the Demand Notice dated 2.8.2007, that the petitioner No.1 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice dated 2.8.2007 is concerned, it has been stated that due to reorganization of the department, the then office of the Joint Commissioner of Customs, has been reorganized/upgraded into the office of Principal Commissioner of Customs, Customs House, Mundra. It is being further stated that during the shifting of the office, the documents pertaining to the Demand Notice were misplaced. However, the office had tried to find out the said documents, the same are not traceable. In the reply, it has been desired that the petitioner instead of approaching this Court, ought to have approached the respondent authorities for settlement of the issues. The reply concludes by alleging that the petitioner has violated the various provisions and the matter requires adjudication by the competent officer of the Customs and therefore, the petition may not be entertained. 5. Heard Mr. Paritosh Gupta, learned advocate for the petitioners and Mr. Parth Divyeshvar, learned Central Government Standing Counsel for the respondents. 6. Mr. Paritosh Gupta, learned advocate for the petitioners has submitted that the issue involved in the present writ petition, is no longer res integra in principle ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the documents pertaining to the Demand Notice might have been misplaced. Except the said ground, nothing has been stated in the reply, substantiating the inaction on its part. 6.5 It is next submitted that it is nobody's case that the Demand Notice dated 2.8.2007 was kept in abeyance, except the reasons mentioned in paragraph 3.3 of the reply. By now, 11 years have already been passed, however, no steps have been taken by the respondents to proceed with the adjudication proceedings. However, no fault can be attributed to the petitioners for this delay and therefore, the respondents should not be permitted to reopen the proceedings at such a belated stage inasmuch as, the issue now stands squarely covered by the principle enunciated in the various judgments of this Court. 6.6 It is, therefore, urged that in view of the issue having been covered by the principle enunciated by the various judgments and no distinction having been carved out by the respondents, the petition deserves to be allowed only on this limited ground. 7. Mr. Parth Y. Divyeshvar, learned Central Government Standing Counsel, while referring to the merits, submitted that though it is the case of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance 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 invoked. Section 11A thereafter has been amended from time to time and in the year 2011, various amendments came to be made in the section including insertion of sub-section (11) which provides that 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 subsection (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under subsection (4) or sub-section (5). 24. Thus, with effect from the year 2011 a time limit has been prescribed for determining the amount of duty of excise where it is possible. It cannot be gainsaid that when the legislature prescribes a time limit, it is incumbent upon the authority to abide by the same. While it is true that the legislature has provided for such abiding by the time limit where it is possible to do so, sub-section (11) of section 11A of the Act gives an indication as to the legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBEC. Transferring matters to the call book being contrary to the provisions of law, the explanation put forth by the respondents for the delay in concluding the proceedings pursuant to the show cause notice 3.8.1998cannot be said to be a plausible explanation for not adjudicating upon the show cause notice within a reasonable time. In view of the settled legal position, as propounded by various High Courts, with which this court is in full agreement, the revival of proceedings after a long gap of ten to fifteen years without disclosing any reason for the delay, would be unlawful and arbitrary and would vitiate the entire proceedings. 25. Examining the matter from another angle, it is the stand of the respondents that the matter was kept in the call book for all these years to await the outcome of a similar case in the case of M/s. Siddharth Petro Products Limited and others, which was pending before the Appellate Tribunal. In such a situation, the decision in the case of the petitioner should be governed by the decision of the Appellate Tribunal. However, the respondents after keeping the matter in the call book for fifteen years, have thereafter chosen not to follow the outco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms, Signature Not Verified Department of Revenue, Ministry of Finance, Government of India is in conformity/authorized by the provisions of Section 37B of the Central Excise Act, 1944 read with the relevant provisions of the Central Excise Rules. Clearly, the notice in the proceedings before the Apex Court, has been issued only for the limited purpose of determining the question as to whether the Circular issued by the Central Board of Excise Customs, is in conformity/authorised by the provisions of Section 37B of the Act of 1962. Also, the co-ordinate bench of this court in the case of Parimal Textiles (supra) while relying on the judgment in the case of Siddhi Vinayak Syntex Pvt. Ltd. (supra) has in paragraph 7 observed that the judgment of the High Court rendered in the identical facts is not disturbed by the Supreme Court of India insofar as its main impact on quashing the show-cause notice and the Order-in-Original is concerned. The co-ordinate bench, while allowing the writ petition, quashed and set aside the show-cause notices which were issued in the year 2000; where the proceedings were kept in call-book, without intimating the noticees. The relevant paragraphs 7 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed the writ petition; whereby, Order-in-Original came to be quashed and set aside. 13. Yet in another decision in the case of Shivkrupa Processors Pvt. Ltd. (supra), the co-ordinate bench while quashing the notice issued in the year 2002 as well as the Order-in-Original, followed the aforesaid principle enunciated by the co-ordinate bench. Paragraph 10 of the judgment, reads thus:- 10. We have heard learned counsels for the parties and perused the documents on record. The undisputed aspect that emerged from the proceedings would unequivocally indicate that notice dated 22.8.2002 did not result into any order for quite sometime and as per say of respondent, it was consigned to the call book as per the circulars prevalent. The authority appeared to have proceeded with broad aspect of the matter that non-receipt of the said notice cannot be said to be established by the noticee and based thereupon, recording findings that concerned authorized person of the petitioner Company, who also is the signatory to this petition, did receive the notice and therefore, it cannot be in any manner correct on the part of the petitioners to say that there was no knowledge of existence of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted period. The Courts have always given primacy to the public interest and also have heavily curbed the attempts to economic offence and dealt with the offenders in stringent manner. At the same time, it has also struck a balance by upholding the cause of litigant that if there is unexplained delay in proceeding with the adjudication of the show cause notice without any cause attributable to the petitioner for such tiring delay and inaction on the part of the respondent. In absence of any kind of malice on the part of the petitioners, there is no justification for enormous delay to have a march over the principles of natural justice on permitting such belated adjudication of the show cause notice. The Courts have, in no unclear terms, held that this results into deep prejudice to the assessee, inasmuch as in the interregnum period the position of the assessee would have changed substantially and therefore, hearing that takes place may affect its right adversely. 20 The transfer to the call book was on the ground that there was yet another matter on the very legal issue, which was pending before this Court, being Special Civil Application No. 537 of 2007, which came to be deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decision. 15. At this stage, one more aspect is required to be considered that is, the judgments cited are dealing with the provisions of Section 11A of the Central Excise Act, 1944; whereas, in the present case, the proceedings have been initiated under Section 28 of the Act of 1962. Notably, Section 11A of the Central Excise Act, 1944 as well as Section 28 of the Act of 1962 are more or less identically worded. Therefore, in view of similarity of the provisions, namely, Section 11A as well as Section 28, the principle laid down in the aforesaid judgments would apply on all fours to the proceedings under Section 28 of the Act of 1962. Also, the respondents, could not dispute that the issue in the present writ petition is distinct to the issue obtaining in the said cases. The learned Central Government Standing Counsel has also not been able to dispute that the principle laid down in the aforesaid judgments cannot be made applicable to the facts of the present case. 16. Clearly, the petitioners by this petition, have challenged the Demand Notice dated 2.8.2007 mainly on the ground that after the issuance of said notice, no steps worth the name have been taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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