TaxTMI 
TaxTMI 
2019 (7) TMI 1409
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any action against the petitioner in pursuance of Show Cause Notice F.No.V.(Ch.32)0303/ Dem/2005 dated 28.6.2005 (Annexure" C") and OIA No.VAD-EXCUS-002-APP-448-2018-19 dated 29.10.2018 (Annexure" H"); (C) pending hearing and final disposal of the present petition, be pleased to restrain the respondent, their servants and agents from taking any action against the petitioner including any coercive recovery pursuant to OIA No.VAD-EXCUS-002-APP-448-2018-19 dated 29.10.2018 (Annexure" H") thereby staying implementation and execution of this appellate order dated 29.10.2018; (D) An exparte adinterim relief in terms of para 15(C) above may kindly be granted. (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted. 3. The case of the writ-applicants in their own words as pleaded in the writapplication is as under:- 3.1 The petitioner is a Limited Company inter alia engaged in manufacture of goods like Dyes, Intermediates, Pigments and other chemicals for which the petitioner has set up a 100% Exported Oriented Undertaking at the address shown in the cause title of the petition. The office of the Development Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts, imposing penalty on the petitioner and confiscating 48,000 Kgs. Of the above goods sold in DTA were also levelled in this show cause notice dated 28.6.2005. 3.6 The petitioner filed a reply dated 21.11.2005 to the above referred show cause notice. But no developments took place for several years after this reply was filed by the petitioner in November, 2005. 3.7 After the petitioner received the above referred show cause notice dated 28.6.2005 and filed a substantive reply dated 21.11.2005, the case was not scheduled for any personal hearing, nor was the petitioner ever called for or informed about any personal hearing for almost 13 years. It appears that in November, 2017 i.e. more than 13 years after the petitioner filed reply to the show cause notice, the office of the Joint Commissioner, Bharuch sent a notice informing the petitioner of three dates for personal hearing of the show cause notice. Though the petitioner does not have a copy of the hearing notice, it appears that the dates of 8.11.2017, 20.11.2017 and 29.11.2017 were offered for personal hearing. The Joint Commissioner, Bharuch, thereafter passed an adjudication order bring OIO No.15/ADJ/DEM/JCVVP/ 1718 da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sioner (Appeals) has passed the order thereby confirming all the liabilities fastened upon the petitioner by the adjudicating authority. 3.10 The petitioners submit that revival of adjudication proceedings after 13 years was an action without jurisdiction, because an adjudication order could not have been made on a show cause notice which was not decided for a long period of 13 years, though there was no reason or malafide attributable to the petitioner for such delay in completion of adjudication. Neither the adjudicating authority nor the Appellate authority has referred to any reason or circumstances for which the show cause notice issued to the petitioner as far back as 28.6.2005 was not decided till December, 2017/ April, 2018 and this is also a gross violation of principles of natural justice. A vital point raised by the petitioner that revival of adjudication proceedings after 13 years was a violation of principles of natural justice is just ignored by the Appellate Commissioner, and the judgments of this Hon'ble Court having a total bearing on this issue have also been bypassed without even referring to them while passing the impugned order. A citizen is subjected to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e adjudication during intervening 13 years because all the relevant documents have been lost and the relevant witnesses who could support the petitioner's case are also now not available because of time gap of more than a decade; and therefore also the Revenue is not entitled to reopen an old matter like the present one. There being no reason or ground at all for which the Revenue could justify revival and reopening of proceedings in this case after more than a decade, such revival and reopening of old and stale proceedings was without jurisdiction; and therefore an appropriate writ, order or direction prohibiting the respondents from acting in illegal and unauthorized manner, and setting aside the order now made by the 2nd respondent may be issued in the interest of justice. 3.13 The petitioner submits that show cause notice was issued on 28.06.2005 to the petitioner herein, but thereafter, the jurisdictional authorities have not taken any action for adjudication of the show cause notice, and therefore the natural inference could be that the jurisdictional authorities treated the proceedings as closed and concluded. There had not been any stay or injunction by any competen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f any reason or circumstances attributable to the petitioner herein, and the petitioner is not guilty of any delaying tactics for keeping adjudication of the show cause notice pending for more than a decade; and therefore, as held by this Hon'ble Court in cases like M/s. Siddhi Vinayak Syntex Pvt. Ltd. 2017 (352) ELT 455 (Guj.) and M/s. Aalidhara Textile Engineers Ltd. 2018 (360) ELT 493 (Guj.) and M/s. Parimal Textiles & Others 2018 (8) GSTL 361 (Guj.), the adjudication now conducted after a long lapse of time is a violation of principles of natural justice and accordingly, the show cause notice kept undecided by the respondents for more than a decade deserves to be quashed and set aside in the interest of justice. The above principle is applicable in the present case also. Delay of more than 13 years in completing adjudication proceedings and revival of the proceedings after such a long delay has resulted in grave prejudice to the petitioner because various documents and even witnesses who could support the petitioner's case have been lost, or have become unavailable, in view of such a long time gap. No reason or ground has been disclosed by the adjudicating or the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s no longer resintegra in view of the decision of this Court in the case of M/s. Siddhi Vinayak Syntex Pvt. Ltd. Vs. Union of India reported in 2017 (352) E.L.T. 455 (Guj.). The decision of this Court in the case of M/s. Siddhi Vinayak (supra) has been challenged by the Union of India before the Supreme Court. The following order came to be passed by the Supreme Court dated 28/07/2017. Special Leave To Appeal (C) No.18214/2017 Date: 2872017 This petition was called on fro hearing today. Upon hearing the counsel the Court made the following order ORDER Heard the learned counsel for the petitioners and perused the relevant material. Exemption from filing certified copy of the impugned order is granted. Issue notice limited to the question as to whether Circular No.162/73/95CX dated 14th December, 1995 issued by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India is in conformity/ authorised by the provisions of Section 37B of the Central Excise Act, 1944 read with the relevant provisions of the Central Excise Rules. 5. According to Mr. Dave, the show-cause notice was issued on 28/06/2005. After a period of al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore this Hon'ble Court vide Tax Appeal No.537 of 2007. As an appeal was pending before this Hon'ble Court on similar issue, the SCN bearing F.No.V.(Ch.32)0303/ Dem/2005 dated 28.06.2005 for demanding of the duty on finished goods as well as on raw materials from M/s. Meghmani Organics Ltd. was transferred to the call book cases on 30.11.2008 in light of CBEC Circular No.162/73/95CX. 3 dated 14.12.95. 14. Further, Tax Appeal No.537 of 2007 has been dismissed by this Hon'ble High Court vide judgment dated 01.02.2017. Thereafter, on review of Call Book cases the SCN bearing F.No.V(Ch.32)0303/ Dem/2005 dated 28.06.2005 was taken out of Call Book cases for adjudication purpose on 18.10.2017. 7. Mr. Desai also submitted that the writ-applicants have an alternative remedy to file an appeal under Section35C of the Central Excise Act, 1944. According to him, in such circumstances, this writ-application may not be entertained and the writ-applicants should be asked to prefer a statutory appeal under Section35C of the Act, 1944. 8. In such circumstances referred to above, Mr. Desai prays that there being no merit in this application, the same may be rejected. ANALYSIS:- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve part of the order passed by the first appellate authority reads thus:- .....Now, I take up the plea of the appellant regarding penalty, I find that the appellant had never disclosed that they have not made any export of the impugned product and cleared all the production of same in DTA only. Ad they have never followed the condition 2(ii) of the Notification No.23/2003CE as they ought to have followed and this tantamount to willful suppression of facts with intent to evade payment of duty. Moreover, the appellant was a 100% EOU and being an EOU they had already furnished LUT and B17 Bond undertaking to pay the applicable duties of central excise payable on the goods cleared in DTA. They are under obligation to pay the central excise duty correctly in accordance with the provisions of the central excise act and rules made thereunder. If they failed to discharge such obligation cast on them by the Law and which they have undertook by way of executing LUT and Bond, suppression of fact aspect never comes into the picture. In this context, the Board's Circular No.73/2000CUS dated 01.09.2000 is worth relying wherein the scope of Hon'ble Supreme Court judgment in case of Med....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under Article 226 of the Constitution, except in cases where there is violation of the principles of natural justice, or where the authority concerned lacks jurisdiction or exercises powers in excess of its jurisdiction or does not does not exercise the jurisdiction vested in it. In the present case, the petition filed been filed on the ground that the impugned order is without jurisdiction, as the adjudicating authority has exercised powers beyond a reasonable period of time and that the same is in breach of principles of natural justice. Under the circumstances, if the petitioner is in a position to show that any of the above circumstances are satisfied, it would be entitled to invoke the writ jurisdiction of this court under Article 226 of the Constitution. 13 Another notable aspect of the matter is that in view of the reply filed by the respondents wherein a stand has been taken that the matter has been referred to the call book, the very validity of the circular issued by the Central Board of Excise and Customs for transferring the matters to call book, has been called in question by the petitioner, which can be done only by invoking the writ jurisdiction of this court und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns of section 37C of the Act, it cannot be said that there was no service of notice upon the petitioner. 15 The moot question that arises for consideration in the present case is, whether it was permissible for the respondents to act upon a show cause notice issued in the year 1998, after a period of seventeen years. At this juncture, it may be germane to refer to the decisions on which reliance has been placed by the learned counsel for the petitioner. 16 The decision of the Bombay High Court in the case of Shirish Harshavadan Shah v. Deputy Director, Enforcement Directorate, Mumbai (supra), was relied upon wherein in the facts of the said case for a period of almost twelve years, no steps had been taken by the respondents therein to proceed with the adjudication proceedings. The court held that no fault could be attributed to the petitioners for this delay and inaction on the part of the respondents; the respondents had not alleged any malice on the part of the petitioners nor was it the case of the respondents that the petitioners therein were responsible for the delay in the proceedings. The court found no justification in the explanation tendered for causing delay in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o.162/73/95CX dated 14.12.1995 issued by the CBEC. Insofar as the power of the CBEC to issue instructions to the authorities under the Central Excise Act are concerned, the same are relatable to the provisions of section 37B of the Act, which read thus:- "37B. Instructions to Central Excise Officers The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods or for the implementation of any other provision of this Act, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner: or (b) so as to interfere with the discretion of the Comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is a quasihelical authority. Such proceedings are strictly governed by the statutory provisions. Section 11A of the Act as it 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 subsection (11) which provides that the Central Excise Officer shall determine the amount of duty of excise under subsection (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 subsection (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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es, envisage issuance of such directions. The concept of call book is, therefore, contrary to the provisions of the Central 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. 25 Examining the matter from another angle, it is the stand of the respondents that the matter was kept in the call book for all these years to await the outcome of a similar case in the case of M/s. Siddharth Petro Products Limited and others, which was pending before the Appellate Tribunal. In such a situation, the decision in the case of the peti....