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TMI Blog2020 (12) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure P-1 in CWP No.11990 of 2020) and 03.02.2011 (Annexure P-4 in CWP No.36547 of 2019). For reference to facts, file of CWP No.11990-2020 is being taken up. The petitioner-Firm is engaged in the manufacturing of Menthol BP/USP, Dementholised Peppermint Oil, Anethole etc. falling under Chapter heading 29, 33 and 39 of the Schedule of the Central Excise Tarriff Act, 1985 and availing Cenvat credit on inputs as per Central Excise Act, 1944 (for short, "1944 Act‟) read with Cenvat Credit Rules, 2004 (for short `Rules'). It is case of the petitioner that on the basis of intelligence, the office of the Central Excise Commissionerate, Meerut-II, initiated an investigation against the petitioner - firm alleging that without actual receipt of goods, it has availed cenvat credit on inputs on the basis of fake invoices issued by J & K based seller. On the basis of investigation, the respondent - department concluded that during 2005-06 to 2008-09, the petitioner purchased their raw material from J & K based manufacturer who did not purchase any crude Mentha oil from the farmers. The respondent vide Show Cause Notice dated 20.05.2010 (Annexure P-1) called upon the petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Similar issue, as involved in both the petitions, has been answered by this Court vide judgment dated 02.08.2018 rendered in CWP No.10530 of 2017 titled "M/s GPI Textiles Limited vs. Union of India & others‟, wherein while dealing with all the aforesaid pronouncements relied upon by the petitioner as also the provisions of Act, the following has been observed as under:- "12. Relevant provisions of Section 11A (1), (4) and (11) of the Act are reproduced hereunder:- "Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.- (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful misstatement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation. 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 below:- "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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 time frame specified by the legislature as far as possible. Moreover, as discussed hereinabove, there is no power vested in the C. B. E. & C. 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 C. B. E. & C. 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 3.8.1998 cannot 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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