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TMI Blog2021 (7) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... No.2) as well as a further notice dated 28th December, 2017 (Annexure-3) issued by the Superintendent (ADJN), CGST, Central Excise and Customs, Bhubaneswar (Opposite Party No.3) and a notice dated 9th January, 2018 (Annexure-5) issued by the said officer. 2. The background facts are that the Petitioner is a company carrying on business of manufacturing of perfumed hair oil and red tooth powder having its plant at Mancheswar Industrial Estate, Bhubaneswar. It is stated that the plant has been closed since long and the Petitioner has no business operation in the State of Odisha. 3. The first impugned show cause notice (SCN) was issued by the Commissioner, Central Excise and Customs (Opposite Party No.2) proposing a demand of excise duty in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil in case of perfumed hair oil and garric powder in case of red tooth powder instead of considering all types of raw materials and packing materials. 6. Treating the above reply dated 3rd March 2000 to be not convincing, the impugned SCN was issued on 29th March, 2000. Learned counsel for the Petitioner contends that the Petitioner responded to the said SCN on 27th April 2000, a copy of which has been enclosed as Annexure-1 to this petition. 7. Thereafter the Petitioner did not hear anything from the Opposite Parties and all of a sudden, more than 17 years later on 28th December, 2017 received a fresh SCN on the same issue with reference to the earlier SCN dated 29th March, 2000 and stating that a personal hearing was fixed on 9th Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bom.); Government of India v. Citedal Fine Pharmaceuticals 1989 (42) ELT 515; Hindustan Lever Ltd. v. Union of India 2011 (24) STR 97 (SC); Siddhi Vinayak Syntex Pvt. Ltd. v. Union of India, 2017 (352) ELT 455 (Guj); Meghamani Organics Ltd. v. Union of India, (2019) TIOL 1607 -HC-AHM- CX; M/s Swati Menthol and Allied Chemicals Ltd. v. Commissioner, GST and Central Excise (CWP-9304-2021 disposed of on 17th May, 2021); Parle International Ltd. v. Union of India (Writ Petition No.12904 of 2019 disposed of on 26th November, 2020); M/s. GPI Textiles Limited v. Union of India (CWP No.10530 of 2017 (O & M) disposed of on 2nd August, 2018). Specific to Section 11-A of the CE Act, reliance was placed on the decision in CCE v. Cemphar Drugs and Lin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s retrieved from call book on 30th June 2016, basing on Board's Circular No.1023/11/2016 dated 8th April, 2016 dealt in F. No.206/02/2010-CX6. He further submitted that in order to comply with the rules of natural justice, a personal hearing was fixed for which the impugned notices were issued to the Petitioner. According to him, the Petitioner did not avail those opportunities. Even now, the Petitioner can avail of that opportunity of hearing and then challenge the order if it is adverse to the Petitioner, in accordance with law. 17. The above submissions have been considered. The stand taken by the Opposite Parties about transfer of the case to the "call book" is totally unconvincing. The relevant circular in this regard is dated 14t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o revive the proceedings. By not informing the Petitioner that its case is being transferred to the 'call book', and then seeking to revive it after 18 years, the Opposite Parties have acted unreasonably particularly since the Petitioner could not have reasonably expected that the proceedings against it would be kept alive for these many years without any action being taken. Also, the Petitioner cannot be expected to preserve its records for these many years and to be able to answer a SCN after 18 years. No effective opportunity of defence can be afforded to the Petitioner in such proceedings. 20. The legal position regarding delays in initiating and concluding proceedings for recovery of taxes and duties is has been explained in several d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 5 years in view of the proviso to subsection 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, beyond the period of six months. Whether in a particular set of facts and circumstances there was any fraud or c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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