TaxTMI 
TaxTMI 
2018 (9) TMI 25
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...., 28.8.2002 (Annexure P-2), 3.1.2003 (Annexure P-3), 2.4.2003 (Annexure P- 4), 4.8.2003 (Annexure P-5). 3. In Civil Writ Petition No. 10707 of 2017, challenge has been made to show cause notice dated 13.9.2006 (Annexure P-1). 4. Challenge has also been made to circular dated 29.9.2016 issued by the Ministry of Finance (Department of Revenue), Central Board of Excise & Customs, New Delhi, in both the writ petitions. 5. Learned counsel for the petitioner primarily argued that proceedings in the case in hand deserve to be quashed only on account of inordinate delay in disposal thereof. Show cause notices were issued way back in the years 2001, 2002, 2003 and 2006. Thereafter, the department remained silent. The reasons assigned in the notic....
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....rovisions of Section 37-B of the Central Excise Act, 1944. 7. Further reliance was placed upon subsequent order passed by the Gujarat High Court in Parimal Textiles vs Union of India 2018 (8) G.S.T.L. 361, which is to the same effect. 8. Reliance was also placed upon judgment of Hon'ble the Supreme Court in State of Punjab vs Bhatinda District Co-op. Milk P. Union Limited 2007 (217) E.L.T. 325, where period of five years was held to be reasonable in the absence of any time provided in the Act. The case in hand is even better. The maximum period provided herein is one year. 9. Learned counsel for the petitioner further submitted that issue regarding keeping the cases pending on account of transfer thereof in the call book has also bee....
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....ion of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,- (a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of,- (i) his own ascertainment of such duty; or (ii) duty ascertained by the Central Excise Officer, the amount of duty along with interest payabl....
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.... Court further examined the fact as to whether transfer of proceedings to call book in view of circular dated 14.12.1995 can be said to be a reasonable explanation. The opinion expressed was that the mandate of law cannot be diluted by issuing circular especially when there is no power to issue such directions regarding transfer of cases to call book. Relevant paras 23 and 24 thereof are extracted below:- "23. Insofar as the show cause notice in the instant case is concerned, the same has been issued under section 11A of the Act. Proceedings under section 11A of the Act are adjudicatory proceedings and the authority which decides the same is a quasi-judicial authority. Such proceedings are strictly governed by the statutory provisions. Se....
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....ling under sub- section (1) and one year from the date of the notice in respect of cases falling under sub-section (4) or sub-section (5). When the legislature has used the expression "where it is possible to do so", it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witnesses may have to be examined, the record of the case may be very bulky, huge workload, non-ava....
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.... C. Transferring matters to the call book being contrary to the provisions of law, the explanation put forth by the respondents for the delay in concluding the proceedings pursuant to the show cause notice 3.8.1998 cannot be said to be a plausible explanation for not adjudicating upon the show cause notice within a reasonable time. In view of the settled legal position, as propounded by various High Courts, with which this court is in full agreement, the revival of proceedings after a long gap of ten to fifteen years without disclosing any reason for the delay, would be unlawful and arbitrary and would vitiate the entire proceedings." 14. In the aforesaid case, Gujarat High Court had set aside the order passed after a long delay in pursua....