9911796707
TMI Blog2022 (5) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notices after such inordinate delay. Request letters were also forwarded by the petitioners to provide link for VC so as to advance the arguments. It is undisputed that neither any reply was given to the petitioners despite their pertinent request nor was any link of hearing through VC was provided despite pertinent demand being made. Apparently, thus, the respondent authorities were playing a game of hide and seek with the petitioners. The respondents have failed to satisfy the court that as a matter of fact any conscious, considered decision was ever taken to transfer the original show cause notices to the Call Book and if so, with prior approval of the Commissioner in terms of the instructions issued vide Circular dated 14.12.1995. Further, the cases were never reviewed as is essential by effect of these circulars. Hence, revival of these proceedings after a gross inordinate and unexplained delay is clearly unjustified. Furthermore, non-intimation of the decision to transfer the original show cause notices to the Call Book to the petitioners herein, has resulted into grave prejudice being caused to them because on account of the delay in revival of the notices, the opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in a tabular form hereinbelow for the sake of ready reference :- S. No. Writ Petition Number and petitioner s name Number of original show cause notice and date of its issuance Date of revival of show cause notice 1. DBCWP No.14492/2021 (PG Foils Ltd.) V(76)30/09/08/551-552 dated 08.01.2008 08.12.2020 2. DBCWP No. 13838/2021 (PG Foils Ltd.) V(76)15/off/ADJ-II/199/07 dated 16.04.2007 27.11.2020 3. DBCWP No. 15131/2021 (Prem Cables) V(76)Adj-II/JPRII/463/08/3156 dated 09.09.2009 21.01.2021 4. DBCWP No. 15157/2021 (Prem Cables) V(76)/30/70/2010/8024 dated 26.05.2010 21.01.2021 5. DBCWP No. 15162/2021 (Prem Cables) V(76)30/357/2009/431 dated 08.01.2010 21.01.2021 6. DBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Writ Petition Nos.14492/2021 and 15131/2021. Learned counsel for the respondents submitted that the reply filed in these two writ petitions may be adopted in the remaining writ petitions as the factual and legal matrix is identical in all writ petitions. Final arguments have been heard. Learned counsel Mr. Ankit Totuka and Mr. Sheetal Kumbhat, representing the petitioners, vehemently and fervently urged that revival of the adjudication proceedings after a gross, inordinate and unexplained delay ranging between 8 to 13 years, post issuance of the original show cause notices is highly arbitrary and untenable in law. No details were ever provided by the respondents to the petitioners that post issuance of the original show cause notices, the matters were consigned to the Call Book. Learned counsel for the petitioners placed reliance on circulars/guidelines governing the transfer of cases in the Customs and Central Excise Department to the Call Book. The first circular relied upon by the petitioners was issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise Customs, New Delhi on 14.12.1995 and it stipulates as below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the call book cases should continue to mention in the MTR as well as in the monthly statements of the progress achieved in Key Result Areas . Reliance was also placed on the instructions issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs dated 18.11.2021 pertaining to Call Book cases. The relevant parts of these instructions read as below :- 4.4 Audit in its report has also pointed incidences of periodical non-review of Call Book cases, non/delayed retrieval of SCNs from Call Book, incorrect transfer of SCNs to Call Book, resulting in irregular retention of cases in Call Book. 4.4.1 Kind attention is invited to Board's D.O. letter F.No. 101/2/92-CX.3 dated 04.03.1992 wherein while indicating the categories of the cases to be transferred to call book, it was directed that a case should be transferred to call book only with the approval of Commissioner. Further, the Commissioners were instructed to review the Call book cases on monthly basis. These instructions have subsequently been reiterated vide Circular No.385/18/98-CX, dated 30-3- 1998 and Circular No.719/35/2003-CX dated 28.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the impugned show cause notices has been severely prejudiced because in absence of any such intimation, it cannot be expected that the petitioners would continue to retain the defence evidence, documentary and otherwise, which would have been available when the show cause notices in original were issued. Reliance in support of these submissions was placed by the petitioners counsel on the following judgments:- 1. Parle International Limited Vs. Union of India and Ors. [2021 (375) ELT 633 (Bom.)] 2. Raymond Ltd. Vs. Union of India [2019 (368) ELT 481 (Bom.)] 3. Siddhi Vinayak Syntex Pvt. Ltd. Vs. Union of India and Ors. [2017 (352) ELT 455 (Guj.)] On these factual and legal grounds, the petitioners counsel vehemently and fervently implored the court to accept the writ petitions and quash the impugned show cause notices and revival notices as being arbitrary, contrary to mandatory instructions issued by the Ministry of Finance and on the ground of inordinate and unexplained delay in concluding the proceedings. Mr. Rajvendra Saraswat and Mr. Ramdev Rajpurohit, learned counsel representing the respondents, submit that the reply filed in the lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st nor was any link of hearing through VC was provided despite pertinent demand being made. Apparently, thus, the respondent authorities were playing a game of hide and seek with the petitioners. Specific grounds have been raised in the writ petition regarding non-compliance of the mandatory Circulars issued by the Ministry of Finance (supra) pertaining to procedure for sending of the cases to the Call Book, viz. no communication was ever made by the respondents to the petitioners regarding the decision to transfer the impugned show cause notices to the Call Book; neither were the cases sent to the Call Book with prior approval of the Commissioner in terms of the Circular dated 14.12.1995 nor was any review made by the Commissioner for timely disposal of the cases. In the reply filed to the lead Writ Petitions Nos.14492/2021 and 15131/2021, on this aspect of the matter, the respondents have pleaded as below :- IV. The said SCN was kept pending for adjudication and was transferred to Call Book as the department had filed appeal in an identical issue before High Court in Appeal No.12/2012 in case of M/s. J.K. Cement and the same was pending for decision. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the year 2012 could not have been a reason for transferring these cases in the Call Book because that eventuality had not even arisen before issuance of a majority of the show cause notices. The respondents have not elaborated in the reply as to how the controversy in the case of J.K. Cement was relevant to the show cause notices impugned by the petitioners in these writ petitions. It was absolutely essential for the Department to have communicated to the petitioners that the show cause notices had been transferred to the Call Book and the reasons for this course of action. In para (D) of the reply, the respondents have claimed that the petitioners were well aware of the pending cases as they have received the show cause notices and the replied to the same through their authorized person M/s. P.S. Choudhary and Associates. In response to personal hearing letters issued post revival, the petitioners asked for the reasons/grounds for keeping the show cause notices pending, which has been replied vide letter dated 20.07.2021. Apparently, thus, it is an admitted position that fate of the original show cause notices, viz. the same having been sent to the call book and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... layed adjudication after more than a decade, defeats the very purpose of issuing show- cause notice. When a show-cause notice is issued to a party, it is expected that the same would be taken to its logical consequence within a reasonable period so that a finality is reached. A period of 13 years as in the present case certainly cannot be construed to be a reasonable period. Petitioner cannot be faulted for taking the view that respondents had decided not to proceed with the show-cause notices. An assessee or a dealer or a taxable person must know where it stands after issuance of show-cause notice and submission of reply. If for more than 10 years thereafter there is no response from the departmental authorities, it cannot be faulted for taking the view that its reply had been accepted and the authorities have given a quietus to the matter. As has been rightly held by this Court in Raymond Limited (supra), such delayed adjudication wholly attributable to the revenue would be in contravention of procedural fairness and thus violative of the principles of natural justice. An action which is unfair and in violation of the principles of natural justice cannot be sustained. Sudden resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iddhi Vinayak Syntex Pvt. Ltd. (supra), the Hon ble Gujarat High Court held as 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 subsection (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 Sub-section (1); (b) within one year from the date of notice, where it is possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, 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 CBEC 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 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 3.8.1998 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
