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TMI Blog2024 (6) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... able explanation, the elasticity would not be available. It is fairly well settled that legislature never wastes words or says anything in vain. The insertion of sub-section Section 11A (11) is not without any purpose or it is not a dead letter. The words where it is possible to do so under Section 11A (11) of the Central Excise Act, 1944 must be read reasonably keeping in mind the legislative intent and policies and the mischief sought to be remedied. It cannot be read dehors the same. The provisions of under Section 11A (11) of the Central Excise Act, 1944 is not dead letter and mere surplusage. The outer limits fixed by the Legislature under Section 11A (11) of the Central Excise Act, 1944 of the completed within a reasonable time frame set out under Section 11A (11) unless an extra ordinary situation arises beyond the control of the Adjudicating Authority and it can never be kept pending for an indefinite period or sine die. The period of limitation of 6 months or 2 year under Section 11A of the Central Excise Act, 1944 cannot be extended to more than seven years as is done in the instant case. In the case of K.M Sharma Vs. I.T.O [ 2002 (4) TMI 7 - SUPREME COURT ] it has been h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection(s), quashing and setting aside the impugned common Show Cause Notice dated 22.09.2014 bearing F. No. 85/KZU/KOL/CE/JRU/Gr. F/13/6372 issued under Section 11A of the Central Excise Act, 1944 by Respondent No. 3, which is at Annexure -1 to this Writ Petition; (b) For issuance of writ(s), order(s) and/or direction(s), quashing and setting aside the impugned common Order-in-Original dated 30.06.2022 bearing No. 13/C.Ex./Pr. Commr./2022 which is at Annexure -2 of this writ petition passed by the Respondent No. 1, in purported exercise of powers conferred under Section 11A of the Central Excise Act, 1944; (c) For issuance of writ(s), order(s) and/or direction(s) to the Respondent to refund the amount of Rs. 50.00 Lacs, illegally collected during investigation without authority of law, contrary to mandates of Article 265 and Article 301 of the Constitution of India; (d) For issuance of writ(s), order(s) and/or direction(s) to the Respondents to pay interest on the said amount of Rs. 50.00 Lacs @12% P.A.; (e) For issuance of writ(s), order(s) and/or direction(s), quashing and setting aside the impugned common Notice dated 09/10.05.2022 bearing No. C. No. V(72)04/BTSP/Adjn./Bok(Ran-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 37B of the Central Excise Act, 1944 issued Instruction F.No. 390/Misc/3/ 2019-JC dated 27.04.2020 for conducting virtual hearing of cases with a view to complete adjudication quickly. The said instruction is made mandatory. The Respondent No. 2 vide notice dated 14.07.2020 after lapse of almost one year again fixed the date of personal hearing on 22.07.2020 by virtual mode. The petitioners in response to their letter dated 20.07.2020 requested the respondent No. 2 to proceed with adjudication of show-cause notice on the basis of submission already made. The respondent No. 4 again on 09/10.05.2022 by the impugned notice fixed personal hearing on 20.05.2022 and allowing cross-examination of the witnesses. The petitioners vide their letter dated 17.05.2022 stated that the adjudication of the impugned show-cause notice after more than 7 years is barred by time and hence, proceedings may be dropped. However, the respondent No. 1 passed the impugned Order-in-Original dated 30.06.2022 under Section 11A of the Central Excise Act, 1944, adjudicating the impugned common show-cause notice dated 22-09-2014. 3. Mr. K. Kurmy, assisted by Mr. N.K. Pasari and Ms Sidhi Jalan, learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have be so construed that every word has a place and everything is in place. The provisions of Section 11A (11) of the Central Excise Act, 1944 reasonably would never mean that the period of six months or one year/two years specified therein could be extended to more than seven years unless there are extraordinary situations beyond the control of the adjudicating authority. The outer limits fixed by the Legislature under Sub-Section (11) of Section 11A of the Central Excise Act, 1944 is not without a purpose. It manifests the legislative intent and declares the legislative policy that the adjudication of the show-cause notices must be completed within a reasonable time frame unless an extra ordinary situation arises beyond the control of the assessing authority and what would be reasonable time frame, must be understood in the context of Sub-Section (11) of Section 11A of the said Act and not dehors the same and it can never be an indefinite period or sine die. A fiscal statute more particularly a provision such as the present one regulating period of limitation must receive strict construction. The law of limitation is intended to give certainly and finality to legal proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no time limit prescribed under the law by which the Adjudication Order shall have to be passed. On many occasions, the OIO is passed after many years after the issue of show-cause notice. In the instant case, Demand cum Show Cause Notice was issued on the basis of investigation conducted which were well within the knowledge of the petitioner and the same are to be decided, after taking into account their written submission and submissions tendered during personal hearing, by issuing an appealable Order. The Demand cum show cause notice and subsequent order is a part of principle of natural justice. Thus, notice issued for personal hearing before passing an adjudication order is a part of principle of natural justice given to the petitioners. Due to some administrative constraint Principal Commissioner who conducted the personal hearing earlier had been transferred before passing the order. The present Adjudicating Authority, before deciding the case, ordered the Superintendent (Adjn.) to issue a personal hearing notice, which is a part of the principle of natural justice given to the petitioners. The Hon'ble Supreme Court in the case of CCE, New Delhi Vs M/s Bhagsons Pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising out of SLP (C) No 13639 of 2021); wherein the Hon ble Apex Court has held that; 11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction, or (iv) a challenge to the vires of the statute or delegated legislation. Mr. Pati reiterated that the Hon'ble Apex Court in catena of judgments has held that the writ application can be entertained in the exceptional circumstances where there is a breach of fundamental rights or violation of principle of natural justice or on the point of jurisdiction or the vires of any statute or delegated legislation is under challenge and the instant case does not fall in any of these exceptions. 7. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it transpires that the impugned show-cause notice was issued vide letter dated 22.09.2014, thereafter the petitioner filed its re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths or 2 year under Section 11A of the Central Excise Act, 1944 cannot be extended to more than seven years as is done in the instant case. In the case of K.M Sharma Vs. I.T.O reported in (2002) 4 SCC 339, it has been held by the Hon'ble Apex Court that the provisions of a fiscal statute, more particularly, one regulating the period of limitation must receive a strict construction as the law of limitation is intended to give certainty and finality to legal proceedings. For brevity, relevant paragraph s extracted herein below: 14. A fiscal statute, more particularly, on a provision such as the present one regulating period of limitation must receive strict construction. Law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to a litigant for an indefinite period on future unforeseen events. Proceedings, which have attained finality under existing law due to bar of limitation cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings, which had already been concluded and attained finality. The amendment to sub section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ambiguous and held that any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning. It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose [(1952) 2 SCC 237: AIR 1952 SC 369 : 1953 SCR 1] had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat Power Co. Ltd. v. Vandry [AIR 1920 PC 181] it had been observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. We, accordingly answer Question 1(a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894. In the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of U.P. reported in AIR 1961 SUPREME COURT 1170 , it has been held by the Hon'ble Apex Court that in the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. [Refer Para-7] 12. In yet another case of Shree Baba Exports Vs. Commissioner of GST Central Excise reported in (2022) 72 PHT 35 (P H) [Para 13], it has been held by the Punjab Haryana High Court that the expression where it is possible to do so does not mean that the time prescribed ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jab Haryana High Court has held that although the words 'where it is possible to do' has been used, that will not stretch the period to decades. 13. At this stage, it is necessary to indicate that the CBIC has issued (Instruction F.No. 390 Misc 3 2019-JC dated 27-04-2020) for conducting virtual hearing of cases with a view to complete adjudication quickly to tide over the extra ordinary situation arisen out of COVID-19 Pandemic. The said instructions are made mandatory and as matter a of the Respondent/Department have undertaken adjudication of hundreds of cases during COVIN-19 restrictions by provision such as the present one regulating period of limitation must receive strict construction. The law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigants for an indefinite period to future unforeseen event. Section 11A (11) of the Central Excise Act, 1944 recognizes the well settled principle that delay in adjudication of a dispute causes prejudice to parties and is contra to Article 14 of the Constitution of India 1950. This provision recognizes that delay in adjudication of a matter causes preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down and possession of the plant and factory was taken over by the Gujarat State Financial Corporation and the same were auctioned around 2004. It appears that the residential house of the Directors was also sold off to clear bank debts in 2002. Thereafter, like a bolt from the blue, the impugned order-in-original came to be served upon the Director after tracing his whereabouts, as mentioned hereinabove. Now, before this Court, in the affidavit-in-reply, the respondents have come out with a case that the show cause notice dated 3-8-1998 issued to the petitioner company was transferred to the call book by the then Commissioner of Central Excise, Ahmedabad-II on 23-3-2000, in view of the fact that in a similar case where the demand was dropped by the Surat-I Commissioner which was reviewed by the Board, the Department had filed an appeal. It appears that the Appellate Tribunal had initially dismissed the appeal on the ground of maintainability against Revenue's appeal that the show cause notice has been retrieved from the call book on 26-4-2014, whereafter, after a considerable delay, notice for personal hearing has been issued fixing the personal hearing in November, 2015. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation that the elected members continue beyond their prescribed term because the elections had not been held and newly elected members cannot join the Central Council. Though, no outer limit has been specified by the legislature for which such previously elected members can continue in office, but this certainly cannot be for indefinite period. For whatever reason, once recourse to this exceptional situation becomes necessary, then the concept of reasonable time would come into play. It is a settled rule of statutory interpretation that wherever no specific time-limit is prescribed, the concept of reasonable time shall hold the field for completing such an action. The courts in the process of interpretation can supply the lacuna, which would help to achieve the object of the Act and the legislative intent and make the provisions effective and operative. 16. At this stage, it is worth mentioning that the objection of the Revenue with regards to alternative remedy; we are of the opinion that now it would not be possible for the petitioner to defend its case effectively by culling out relevant records, evidences, producing its witness etc. thus, remitting the matter back would ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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