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TMI Blog2022 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the convenience, reference is being made to the facts pleaded in CWP No.11860 of 2021. 3. Petitioner claims to be engaged in the manufacture of Menthol Crystal/ Powder/ Solution, falling under Chapter Sub-Heading 2906 11 00 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, 1985. Between 2005-2010, he purchased raw material for manufacturing final products from suppliers based out in Jammu & Kashmir. During 2008-2010, investigations were carried out by the respondent/Department against various units engaged in the manufacture of Menthol Crystal/ Powder/ Solution, falling under Chapter Sub-Heading 2906 11 00 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, 1985. The petitioner was also investigated. 4. Based on the aforesaid investigation conducted by the officer of Central Excise of Meerut-II, Commissionerate, respondent No.2 issued Show Cause Notice bearing C.No. IV-CE(9) CP/SBA/06/06 Pt. - 15/21192 dated 31.12.2009 to the petitioner alleging that he has been availing Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon the aforesaid Circular No.1053/02/2017-CX dated 10.03.2017 to state that the matters have been transferred to the Call Book in terms of the circular and thus, non-adjudication of the Show Cause Notice cannot be said to be illegal. 9. We have heard learned counsel for the parties and have carefully gone through the record. 10. Section 11(A) of the Act reads as under :- "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 or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,- (a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of notice on such person under the aforesaid sub-section (1) or subsection (3) or sub-section (4) or subsection (5), subject to the condition that the grounds relied upon for the subsequent period are the same as are mentioned in the earlier notice or notices. (8) Where the service of notice is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the period of one year referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), as the case my be. (9) Where any appellate authority or Tribunal or court concludes that the notice issued under sub-section (4) is not sustainable for the reason that the charges of fraud or collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rulesmade thereunder with intent to evade payment of duty has not been established against the person to whom the notice was issued, the Central Excise Officer shall determine the duty of excise payable by such person for the period of one year, deeming as if the notice were issued under clause (a) of sub-section (1). (10) The Central Excise Officer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 12. The Apex Court in 'Commissioner of Central Excise vs. Krishna Wax (P) Limited', (2020) 12 SCC 572, while interpreting the same provision has held that - "10. The issuance of Show Cause Notice under Section 11-A also has some significance in the eye of the law. The day the Show Cause Notice is issued, becomes the reckoning date for various issues including the issue of limitation..." 13. Thus, it is clear that in Section 11-A(11), the legislature has prescribed a time limit. The Authority(s) are duty bound to abide the same. The expression "where it is possible to do so" does not mean that the time prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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