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TMI Blog2023 (1) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN and the further notice fixing the date of hearing. In the presence case as well, the Court is unable to find any valid explanation offered by the Department in delaying the initial SCN under Section 11A of the CE Act, 3 years after the period of demand and then, more importantly, taking 5 years to retrieve the matter from the Call Book. This Court quashes the impugned SCN dated 3rd February, 2010 and all proceedings consequent thereto including the impugned notice dated 26th May, 2017 - Petition allowed. - W.P.(C) No.11837 of 2017 - - - Dated:- 2-1-2023 - DR. S. MURALIDHAR CHIEF JUSTICE AND M.S. RAMAN, JUDGE Petitioner : Mr. C. R. Das, Advocate Opposite Parties : Mr. Ananda Prakash Das, Junior Standing Counsel for O.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 7th February, 2011 and then retrieve it from the said Call Book 5 years later, all of a sudden. The precise averment in the counter affidavit in this regard reads as under: 4. That with regard to the averments made in paragraph 1 of the Writ petition, it is humbly submitted that the said matter arises out of objection raised by the Accountant General, Odisha (AG(O)) and the Opposite Party contested over the said issue. However, precaution Show Cause Notice was issued and kept in the Call Book, and various correspondences have been made with the Accountant General, Odisha to settle the issue. Since the issue was not settled by the Accountant General, Odisha, the Department (Opposite Party) retrieved the case from the Call Book on 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the initial SCN under Section 11A of the CE Act, 3 years after the period of demand and then, more importantly, taking 5 years to retrieve the matter from the Call Book. As noticed by this Court in Maxcare Laboratories Ltd. (supra), in similar circumstances, the Supreme Court of India in Government of India v. Citedal Fine Pharmaceuticals 1989 (42) ELT 515, in the context of proceedings for recovery of excise duty on medicinal toilet preparations observed as under: While it is true that Rule 12 does not prescribe any period within which recovery of any duty as contemplated by the Rule is to be made, but that by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saddled with any liability, beyond the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. 10. Other High Courts too have invalidated SCNs where attempts were made by the Department to revive a matter sent to the Call Book several years later. These decisions include Siddhi Vinayak Syntex Pvt. Ltd. v. Union of India 2017 (352) ELT 455 (Guj.) and Meghamani Organics Ltd. v. Union of India 2019 (368) ELT 433 (Guj.) 11. For the aforementioned reasons, this Court quashes the impugned SCN dated 3rd February, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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