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TMI Blog2024 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case before us for the delay in adjudication of the SCN was not the fact case before the Supreme Court. It is important to note that Section 28 (9) provides for determination of the amount of duty or interest within 6 months/1 year from the date of notice as the case may be with further extension of the same period and subject to the conditions specified in the proviso therein. Therefore, insofar as, the provision with which we are concerned, i.e., Section 28 (9) of the Customs Act, there is an express bar in passing the order. Petition allowed. - K. R. SHRIRAM AND JITENDRA JAIN, JJ. For the Petitioner : Mr. Prakash Shah a/w. Mr. Jas Sanghavi i/b. M/s. PDS Legal. For the Respondent Nos. 1 to 3: Mr. P. M. Sharma. For the Respondent Nos. 4 and 5: Ms. Sangeeta Yadav. JUDGMENT: (PER JITENDRA JAIN, J.) 1. Rule. By consent of the parties the petition is taken up for final hearing since the pleadings are completed. 2. By this petition under Article 226 of the Constitution of India, Petitioner challenges the Show Cause Notice (SCN) dated 10th March 2015 issued by Respondent No. 4-Directorate of Revenue Intelligence (DRI), which is now sought to be adjudicated after a period of almos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industry (India) 2003 (158) E.L.T. 129 (S.C.) and submitted that there is no statutory bar to adjudicate the matter even after lapse of 9 years after the issue of SCN. 6. Petitioner has filed a rejoinder affirmed on 5th September 2023 and denied any intimation from Respondents with regard to transfer of his case to call book . We had given an opportunity to Respondents to file a sur-rejoinder, but Respondents counsel informed us today that they do not wish to file any sur-rejoinder. It is also important to note that Respondents in the reply have not made a positive statement that Petitioner was informed about his case being transferred to call book. 7. At the outset, it is important to note that admittedly, Petitioner was not informed about his case being transferred to call book . There is no proof furnished by Respondents that they have intimated Petitioner about his case being transferred, nor it is stated so in the reply or rebutted by filing a sur-rejoinder inspite of the fact that Petitioner has filed a rejoinder, wherein he has denied having received any such communication. Therefore, the justification sought for delay in adjudication of the SCN on the ground of transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the Court observed ....... This Court has, time and again, held that if the show cause notice is being transferred to the call book, the party should be informed about the same. ........In Shreenathji Logistics (supra), the Court also has relied and followed another judgment of this Court in Godrej Boyce Mfg. Co. Ltd. Vs. Union of India 2022 (142) Taxmann.com 418 (Bombay) where paragraph 11 reads as under: 11. We have heard the submissions of learned counsel appearing for both sides as also considered the case law relied upon by them. We have no hesitation in holding that the present Petition deserves to be allowed for the following reasons, viz. A. The law pertaining to adjudication of show cause notices is now well settled by various judgments, in particular Raymonds (supra) and Parle (supra) of this Hon'ble Court, from which the following can be culled out, viz., i. Even where the statue does not prescribe a time limit for adjudication, a show cause notice must be adjudicated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii. With the passage of time (and failure to inform) Petitioner was put in a position of irretrievable prejudice as the evidence was lost/not traceable and the concerned persons were no longer in the employment of Petitioner. iv. No delay was occasioned on account of Petitioner. In light of the above, we find that the adjudication of the impugned notices by Respondent No. 3 in the present case was clearly bad in law and consequently the impugned order is also void. Respondent No. 3 had taken up the impugned notices for adjudication after a period of thirteen years from the date of issuance thereof and after submission of reply. This by all counts is well beyond the reasonable period of time in which Respondents were expected and required to act. Additionally, Respondents did not inform Petitioner that the impugned notices had been transferred to call book this coupled with the sudden resurrection of the impugned notices after over a decade has impinged on procedural fairness and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Petitioner has available an alternate and equally efficacious remedy by way of Appeal also to be misplaced and of no substance in the facts and circumstances of the present case. The judgment in the case of Hover Automotive India Pvt. Ltd. (supra) is also wholly inapplicable to the facts of the present case. The only challenge in the case of Hover Automotive India Pvt. Ltd. (supra) was one which pertained to failure of the authority (in that case) to properly construe and deal with certain judgments cited before it. The challenge in the present case, however, is one which pertains to the grave prejudice caused to Petitioner on account of the violation of the principles of natural justice occasioned by Respondents conduct in reopening adjudication proceedings after an inordinate delay. It has now been conclusively held that such conduct on the part of revenue authorities is in contravention of procedural fairness and thus in violation of principles of natural justice and is 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 jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lted in grave prejudice being caused to Petitioner and amounts to a violation of the principles of natural justice. Thus, the present Writ Petition is squarely maintainable and Petitioner does not have to be relegated to the remedy of Appeal even though available. D. Another aspect which we must note and one which also highlights the inequitable manner in which Respondents have acted is the fact that even though the impugned notices had been transferred to call book, Respondents continued to compute interest on the duty/tax amount mentioned therein. Since we are setting aside the impugned order we are not going into this aspect presently. 9. This Court in ATA Freight Line (1) Pvt. Ltd. Vs. Union of India (2022) 1 Centax 32 (Bom) has held that non communication to petitioner about show cause notice being transferred to call book and being kept in abeyance would render the show cause notice to have lapsed. This view in ATA Freight Line (1) Pvt. Ltd. (supra) has been confirmed by the Apex Court in Union of India Ors. Vs. ATA Freight Line (1) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Commissioner CGST Central Excise Anr. 2023 (8) TMI 352-Bombay High Court has analysed this issue in depth and has held that such delay in adjudication of SCN is required to be quashed. 10. The decision relied upon by Respondents in Bagsons Paints Industry (India) (supra) is distinguishable on facts. The justification which is sought in the present case before us for the delay in adjudication of the SCN was not the fact case before the Supreme Court. It is important to note that Section 28 (9) provides for determination of the amount of duty or interest within 6 months/1 year from the date of notice as the case may be with further extension of the same period and subject to the conditions specified in the proviso therein. Therefore, insofar as, the provision with which we are concerned, i.e., Section 28 (9) of the Customs Act, there is an express bar in passing the order. The decision of the Supreme Court relied upon by Respondents was not concerned with provisions of Section 28 (9) of the Customs Act and, therefore, the said decision is not applicable to the facts of the present petition. The facts of the present Petitioner being different to the facts before the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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