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TMI Blog2024 (6) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Jitendra B. Mishra and Mr. P. S. Patkar. ORAL JUDGMENT (PER K. R. SHRIRAM, J) : 1. Petitioner, a wholly owned subsidiary of ICICI Bank Limited, has approached this Court seeking a declaration that the proceedings initiated pursuant to two show cause notices dated 22nd October 2010 and 21st October 2011 for FY 2005-06 and FY 2006-07, respectively, be declared as non est. According to petitioner, these show cause notices have to be quashed in view of delay in adjudicating the same. 2. For show cause notice dated 22nd October 2010 (SCN-1), petitioner filed a reply vide letter dated 28th June 2011. For show cause notice dated 21st October 2011 (SCN-2), petitioner filed reply vide communication dated 12th June 2013. For SCN-1, personal hearing was granted on 5th January 2012 and petitioner filed written submissions dated 19th January 2012. For SCN-2, no personal hearing was provided. 3. Petitioner received two notices dated 26th November 2020 and 11th January 2021 calling upon petitioner to attend the personal hearing. It is at this stage, petitioner filed this petition on 25th January 2021. By an order dated 24th January 2022, ad-interim relief was granted to petitioner and same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicated upon within a reasonable time; ii. Though reasonable time is flexible and would depend upon the facts and circumstances of each case, since the object of issuing a show cause notice is to secure and recover public revenue, larger public interest requires that revenue authorities act diligently and expeditiously when adjudicating the same; iii. Diligence would include keeping the answering party informed when a show cause notice is kept in abeyance/ transferred to call book,. This serves a twofold purpose, viz., (a) the answering party is put to notice that proceedings are still alive and the answering party can thus safeguard the necessary evidence etc. till such time as the show cause notice is taken up for adjudication; and/or (b) the answering party could at that stage itself contest the show cause notice and/or point out why the same should be taken up for adjudication. iv. Failure to keep the answering party informed about the fate of the show cause notice and delay in adjudicating the same (for no fault of answering party) impinges on procedural fairness and is thus a violation of the principles of natural justice; v. Adjudication proceedings, delayed for more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put Petitioners in a position of irretrievable prejudice. The principles of natural justice and fair play in this case have clearly been violated by Respondents. Though Respondents have contended that the impugned notices were transferred to call book as per the circular of the Board, we find that even the Affidavit in Reply does not mention either the date on which the impugned notices were so transferred, nor does it annex a copy of the circular upon which Respondents have placed reliance. The least that was expected from Respondents was that they would have produced a copy of the relevant circular on which reliance has been placed. Another fact that is to be noted is that the circular relied upon by Respondent is dated 2003 and the impugned notices were issued in the year 2008/2009. Hence, absent production of the said circular and/or a proper explanation as to the contents of the same, Respondents contention that the impugned notices had been transferred to call book based thereon is completely unintelligible and mere ipse dixit. Thus, in the facts and circumstances of the present case, we have no hesitation in holding that Petitioner was entirely justified in concluding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore amenable to challenge by way of a writ jurisdiction. Infact, a careful reading of the judgment in the case of Hover Automotive India Pvt. Ltd. (supra) also specifically sets out that writ jurisdiction can always be invoked and is available to a party when there is any contravention of the principles of natural justice. It is useful to reproduce here paragraph 13 from the judgment of the case of Hover Automotive India Pvt. Ltd. (supra) which in turn relies upon the judgment of the Hon ble Supreme Court of India in the case of the Assistant Commissioner of State Tax Others vs M/s Commercial Steel Ltd. dated 3rd September, 2021 passed in Civil Appeal No. 5121 of 2021 and reads thus, viz., 13. In this context, we consider it useful to also refer to paragraphs 11 and 12 of the decision in Commercial Steel Limited (supra) cited by the petitioner. Paragraphs 11 and 12 are quoted below:- 11. The respondent h ad 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 to the maintainability of a writ petition under Article 226 of the Constitution. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in Union of India Ors. Vs. ATA Freight Line (I) Pvt. Ltd. 2023 (2) TMI 1131. 10. Ms. Desai submitted that the issue of transfer to call book is still pending in the Apex Court and relying upon the order of the Apex Court in Union of India Vs. Siddhi Vinayak Syntex Pvt. Ltd. 2022 (379) ELT 553 (SC) submitted that this Court should not make any observation regarding the show cause notices being transferred to call book and the effect thereof. We are not inclined to adopt the course of action suggested by Ms. Desai. In Siddhi Vinayak Syntex Pvt. Ltd. (supra) which was an SLP filed by Union of India impugning the judgment of the Hon ble Gujarat High Court in Siddhi Vinayak Syntex Pvt. Ltd. Vs. Union of India 2017 (352) ELT 455 (Guj) , the Hon ble Gujarat High Court has held that the Central Board of Excise and Customs was not empowered under Section 37B of the Central Excise Act, 1944 to issue instructions to the Central Excise Officer to transfer the show cause notices to call book and keep the same in abeyance. In the case at hand, petitioner is not challenging transfer of show cause notices to call book and keeping the same in abeyance, but is only raising a ground that n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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