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TMI Blog2021 (5) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed - petition allowed. - CWP-9340-2021 - - - Dated:- 17-5-2021 - HON'BLE MR. JUSTICE JASWANT SINGH HON'BLE MR. JUSTICE SANT PARKASH Present: Mr. Rajat Mittal, Advocate and Mr. Anuj Dewan, Advocate, for the petitioners. Mr. Anshuman Chopra, Advocate, for the respondents. **** SANT PARKASH, J. (The aforesaid presence is being recorded through video conferencing since the proceedings are being conducted in virtual court) The prayer in the present petition is for issuance of a writ in the nature of certiorari seeking quashing of show cause notices dated 02.03.2010 (Annexures P-1 and P-2) and dated 06.05.2010 (Annexure P-3) proposing to recover the deficit in payment of excise duty etc. on the ground of 11 years' delay in adjudication till now. Brief facts of the case are that petitioner No.1 is engaged in the manufacture of Menthol Crystal/Powder/Solution, falling under Chapter Sub-Heading 2906 1100 and De-mentholised Oil (DMO), peppermint oil, terpines, etc. falling under Sub-heading 330125 90 of the First Schedule of the Central Excise Tariff Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Commissioner, Central GST Commissionerate, Chandigarh has been adjourned sine die for time being and next date of hearing will be informed later on. Aggrieved by the non-adjudication of the show cause notices issued to the petitioners for more than 10 years, the petitioners have approached this Court by way of present petition. Learned counsel for the petitioners submits that show-cause notices were issued on 02.03.2010 and 06.05.2010 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 should be concluded within a period of six months, whereas in the case of fraud, collusion etc., the period prescribed is one year. In the case in hand, the proceedings are pending for the last more than 10 years. Counsel for the petitioner(s) submits that present case is squarely covered by a Division Bench Judgment of this Court in case bearing C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA 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 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' case (supra), where again belated order passed after issuing show cause notice, was set aside. 17. Section 11A(11) of the Act provides that Cental Excise Officer shall determine the amount of duty within six months in case notice has been under Sub-section 1 thereof, whereas in the case of fraud, collusion, etc., the period prescribed is one year. No doubt, the words 'where it is possible to do so' have been used, however, that will not stretch the period to decades as is in the cases in hand. 18. In Bhatinda District Co-op. Milk P. Union Limited's case (supra), Hon'ble the Supreme Court upheld a Division Bench judgment of this Court where opinion expressed was that where no period of limitation is provided for exercise of any power, any notice issued more than five years thereafter was held to be unreasonable. 19. For the reasons mentioned above, we find that the notices in the present cases having been issued more than decade back and the proceedings having not been concluded within reasonable time, the same deserves to be quashed. The aforesaid reproduction clearly reveals that the subject matter in the present petition is squarely cover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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