2018 (1) TMI 531

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.... petitions is to show cause notices dated 14.11.1995 and 09.12.1995. 3. The preliminary objection raised by the learned Senior Panel Counsel for the Revenue is with regard to the maintainability of the writ petitions contending that writ petitions against show cause notices are not maintainable, as the petitioner should be relegated to the Authority concerned to participate in the personal hearing and contest the matters on merits. 4. The preliminary objection raised by the Revenue is not impressive for the reason being that the show cause notices are dated 14.11.1995 and 09.12.1995 and that the adjudication is sought to be done in February 2017. Thus, this Court is inclined to consider as to whether the action initiated by the Depart....

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....t the benefit of the said Notification, as availed by it, is just and proper and that there was no cause to deny the benefit of the said exemption notification. 8. In terms of Section 11A of the Central Excise Act, 1944, the duties, which have not been levied or not paid or short-levied or short-paid or erroneously refunded, can be recovered. However, the Statute provides a time limit, within which, such proceedings are to be initiated under Sections 11A(11)(a) and (b), which read as follows : "The Central Excise Officer shall determine the amount of duty of excise under Sub-Section (10) (a) within six months from the date of notice where it is possible to do so, in respect of cases falling under Sub-Section (1); and ....

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..... The settled legal principle is that when the correctness of an order is tested by a Court in a Writ of Certiorari, the respondent, defending such an action, is entitled to rely upon as to what has been stated in the order, which is sought to be set aside and that the respondent cannot substitute fresh reasons in the form of a counter affidavit. 12. However, in the instant case, the respondent seeks to substitute reasons not only by way of a counter affidavit alone, but also by way of an additional counter affidavit. On a reading of the counters, it is seen that there has been an audit conducted by the Central Excise Revenue Audit (CERA) and that the audit report pointed out that the petitioner is not entitled to the benefit of Notifica....

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....nal hearing on 22.3.2017. This has necessitated the petitioner to come before this Court. 15. When the cases came up for hearing on the earlier dates, this Court directed the respondent to file an affidavit to show as to whether the transfer of the case to the Call Book was informed to the petitioner. Accordingly, the additional counter affidavit dated 13.11.2017 has been filed accepting the fact that there is no intimation to the assessee about the transfer of the show cause notices to the Call Book. Thus, absolutely the petitioner had no knowledge as to what was the reason for not passing the adjudication order on the impugned show cause notices. Though an opportunity of personal hearing was offered on 19.1.1996, it has to be seen as t....

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.... In the decision in the case of Lanvin Synthetics Private Ltd. Vs. Union of India [reported in (2015) 322 ELT 429 (Bom.)], a show cause notice issued to the petitioner therein was put to challenge on several grounds, one of which being that for 17 long years, the matter remained unadjudicated and that the Authorities should not be permitted to proceed with the adjudication. The Hon'ble Division Bench pointed out that they see no reason for the Revenue/Department not passing an adjudication order for 17 long years and that the petitioner therein cannot be faulted for approaching the Court belatedly. The explanation, which was offered by the Revenue before the Court that they were unable to trace the file was rejected and it was held that....

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....earing has been concluded, it is necessary to communicate the decision as expeditiously as possible, but not later than one month in any case, barring in exceptional circumstances to be recorded in the file and that the order is required to be communicated to the assessee in terms of the provisions of Section 37C of the Central Excise Act, 1944. 21. It is also important to note that in paragraph 4 of the additional counter affidavit filed by the respondent, the respondent referred to Board's Circular No.162/73/95/CX dated 14.12.1995 to justify their action by stating that there is no specific mention about the intimation to the assessee in respect of transfer to the Call Book. 22. The reliance on the Board's Circular dated 14.....