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TMI Blog2022 (8) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... of RAYMOND LIMITED VERSUS THE UNION OF INDIA THROUGH THE MINISTRY OF FINANCE AND ANR. [ 2019 (8) TMI 962 - BOMBAY HIGH COURT] , where CBE C has directed the officers of the department to formally communicate to the party that the notices which have been issued to them, are being transferred to the call book. This circular only states the obvious because one would have expected the state even in the absence of such a circular, to formally issue such communication to a party. In this case, the show cause notices were kept in the call book not at the instance of petitioner, but by the revenue of its own accord. After having kept it in the call book, no intimation / communication was sent by respondent no.2 pointing out that the show cause notices had been kept in the call book. If only had been so communicated, petitioner would have been put to notice that the show cause notices are still alive and would be subject to adjudication after the show cause notices are retrieved from the call book on the dispute which led to keeping it in the call book, being resolved. Admittedly, this has not been done. Petition disposed off. - WRIT PETITION NO.4246 OF 2022 - - - Dated:- 19-8-202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading 85.46 and confirmed the demands made earlier. This order was impugned by petitioner in the appeal before the Collector of Central Excise and Customs (Appeals). The appeal was allowed by an order dated 7th September 1989 and 8th August 1991. While allowing the appeal, petitioner s submission that the product manufactured by petitioner should be classified under Chapter heading 48.11 with notification no.64/88 dated 1st March 1988 was upheld. 6. Aggrieved by this order, respondents preferred an appeal before the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, which is now Customs Excise and Service Tax Appellate Tribunal (Tribunal). The Tribunal by an order dated 18th August 1998 allowed respondents appeal and held that petitioner s product was classifiable under Chapter heading 85.46. Aggrieved by this order, petitioner approached the Apex Court and filed a Civil Appeal No.5819-5822 of 1998. By an order dated 10th May 1999, the Apex Court was pleased to set aside the order passed by the Tribunal and remanded the matters back to the Tribunal for considering the matter on merits in the light of notification bearing no.77/89 dated 1st March 1989. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surprise and prejudice a fair trial as the documents relevant to the show cause notices are not available with petitioner. Mr. Shah submitted that even if respondents provided the copies of show cause notices and the replies filed by petitioner, still that would not help petitioner because nobody would even remember the facts of the case and the employees who were employed then have also left the organisation. Mr. Shah submitted that the show cause notices have to be quashed and set aside and relied upon the following 8 judgments in support of his case: (1) Premier Ltd Vs. Union of India 2017 (354) ELT 365 (Bom) (2) Union of India Vs. Premier Ltd. 2018 (360) ELT A181 (SC) (3) Raymond Ltd. Vs. Union of India 2019 (368) ELT 481 (Bom) (4) Parle International Ltd. Vs. Union of India 2021 (375) ELT 633 (5) Sushitex Export India Ltd. Ors Vs. Union of India Anr. Bombay High Court - Writ petition (L) No.9641 of 2020 dated 14.01.2022 (6) The Bombay Dyeing Manufacturing Company Ltd. Vs. Deputy Commissioner of CX, Div-IX, Mumbai Central GST Commissioner Bombay High Court - Writ Petition No.2874 of 2021 dated 14.02.2022 (7) Reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll book may have nothing to do with the case pending in CESTAT. 13. Moreover, the show cause notices issued were also restricted to classify petitioner s product under Chapter 85.46 of the first schedule to the Central Tariff Act, which had already been decided by the CESTAT and conceded by petitioner before the Apex Court. The only issue that was pending before the CESTAT on remand from the Supreme Court was to consider petitioner s case on merits in the light of notification no.77/89 dated 1st March 1989, which is not even referred to in the show cause notices. Moreover, this notification is also not reflected in the reply filed by petitioner to the show cause notices. 14. A very similar situation was considered by a Division Bench of this Court in Raymond Ltd (Supra). There also, the grievance of petitioner was that by issuing show cause notices for personal hearing long after, (i.e., 14 to 17 years) the impugned show cause notices were issued, were bad in law. Petitioner had submitted that revival of abandoned show cause notices long after they were issued would cause prejudice to petitioner. The stand of Revenue was similar to the stand taken in the case at hand. Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of petitioner's Bhopal and Indore Units were decided on 8 th April, 2005 by the Tribunal and pending in Revenue Appeal before the Apex Court. Thus, the respondents decided to keep the impugned show cause notices again in the call book, awaiting the final decision of the Hon'ble Supreme Court, to which, Appeals had been filed by the Revenue from the order dated 8th April, 2005 of the Tribunal. This resulted in the impugned show cause notices being transferred to the call book again on 06/02/2013. It is the case of the Revenue that it was only after the Hon'ble Supreme Court passed the final order in the Revenue's Appeal on 06/09/2017 that the impugned show cause notices were removed from the call book and the notices for personal hearing were issued to the petitioners. xxxxxxxxxxxxxxxxxxxx 6. We specifically asked Mr. Jetly, Learned Counsel appearing for the Revenue, whether any intimation was given to the petitioners either in 2001 or in 2013 that the show cause notices are being kept in the call book and the reason for it i.e. awaiting a final decision in the CERA audit objection and / or the decision in the Apex Court in the appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar only states the obvious. In this case, the show cause notices were kept in the call book not at the instance of petitioner, but by the Revenue of its own accord. After having kept it in the call book, no intimation/communication was sent by the Commissioner pointing out that the show cause notices had been kept in the call book. Thus, bringing it to the notice of the petitioners that the show cause notices are still alive and would be subject to adjudication after the show cause notices are retrieved from the call book on the dispute which led to keeping it in the call book being resolved. This, admittedly has not been done by the Revenue in this case. 11. Therefore, it was reasonable for the petitioners to proceed on the basis that the department was not interested in prosecuting the show cause notices and had abandoned it. These proceedings are now being commenced after such a long gap, after having led the petitioner to reasonably expect that the proceedings are dropped. Therefore, even if, notices can be kept in the call book to avoid multiplicity of the proceedings, yet the principle of natural justice would require that before the notices are kept in the call book, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep the show cause notices alive, they should have strictly followed the instructions given in the CBE C circular dated 10th March 2017 referred to in paragraph 10 of Raymond Ltd. (supra), where CBE C has directed the officers of the department to formally communicate to the party that the notices which have been issued to them, are being transferred to the call book. This circular only states the obvious because one would have expected the state even in the absence of such a circular, to formally issue such communication to a party. In this case, the show cause notices were kept in the call book not at the instance of petitioner, but by the revenue of its own accord. After having kept it in the call book, no intimation / communication was sent by respondent no.2 pointing out that the show cause notices had been kept in the call book. If only had been so communicated, petitioner would have been put to notice that the show cause notices are still alive and would be subject to adjudication after the show cause notices are retrieved from the call book on the dispute which led to keeping it in the call book, being resolved. Admittedly, this has not been done. 18 In the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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