2019 (6) TMI 796

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....n, this Hon'ble Court be pleased to restrain the Respondents by themselves, their officers, subordinates, servants and agents to refrain from acting upon or taking any further steps or proceedings in pursuance of and / or in implementation and / or in furtherance of the impugned Order in Original No.07/ADJ/DEM/JCVVP/ 17-18 dated 28.07.2017 and Order in Appeal No.VAD-EXCUS-002-APP-834-835/2017-18 dated 24.01.2018; (d) An ex-parte ad-interim relief in terms of para (d) above may kindly be granted." 2. The issue involved in this petition is short and in order to appreciate the same, few relevant facts need mention herein-below: 2.1 On 24.09.1993, the petitioner was granted a license by the then Assistant Commissioner under Section 58 of the Customs Act to operate as a private bonded warehouse for the storage of imported/indigenous machinery and equipment, raw materials, consumables, components, spares, packing materials and finished goods and machinery and equipment. The petitioner removed from time to time, the excisable goods from its warehouse/licensed factory for export outside India without payment of duty. The petitioner had, with the permission of the Development Commis....

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....urt in the case of M/s. Siddhi Vinayak Syntex Pvt. Ltd. Union of India and ors. reported in 2017(352) ELT 455 and M/s. Parimal Textiles Vs. Union of India reported in 2018(8) G.S.T.L. 361 (Guj.). as well as Alidhara Textile Engineers Ltd. & Ors. Vs. Union of India reported in 2017 (3) GLH 306 and other decisions and submitted the case could not have been kept pending for so many years and the delay of more than 14 years is fatal and amounts to re-opening the case. It was submitted that no mala fide or any other default is attributable to the petitioner for the delay in adjudicating the show cause notice and hence, the impugned order which has been passed after a reasonable period of time and show cause notice are required to be quashed and set aside by allowing the petition. 5. Mr. Nirzar Desai, learned advocate for the respondents submitted that present petition is not maintainable as the impugned show cause notice has been taken out from call book and opportunities of personal hearing on several occasions were given to the petitioners to adjudicate the show cause notice, but neither the petitioner / co-notice or any representative on their behalf appeared on any of the give date....

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.... stood at the relevant time when the show cause notice came to be issued, provided for issuance of notice within six months from the relevant date in ordinary cases and within five years in case where the extended period of limitation is invoked. Section 11A thereafter has been amended from time to time and in the year 2011, various amendments came to be made in the section including insertion of sub-section (11) which provides that 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 subsection (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under subsection (4) or sub-section (5). 24. Thus, with effect from the year 2011 a time limit has been prescribed for determining the amount of duty of excise where it is possible. It cannot be gainsaid that when the legislature prescribes a time limit, it is incumbent upon the authority to abide by the same. While it is true that the legislature has provided for such abiding by the time limit where it is possible to do so, ....

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....tral Excise Act and such instructions are beyond the scope of the authority of the CBEC. 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. 9. In the case of Shivkurpa Processors Pvt. Ltd. Vs. Union of India reported in 2018 (362) E.L.T. 773 (Guj.). In the case of Shivkrupa (Supra), this Court has held as under:   "10. We have heard learned counsels for the parties and perused the documents on record. The undisputed aspect that emerged from the proceedings would unequivocally indicate that notice dated 22.8.2002 did not result into any order for quite sometime and as per say of respondent, it was....