TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 596
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....ools temporarily imported for execution of contract were eligible for concessional rate of duty at the rate of 15% of the aggregate duties of customs, i.e. total duty leviable under the Customs Act, 1962 (hereinafter referred to as 'the Act of 1962'), if they are re-exported within six months. The said notification was followed by another Notification No.54/2003 dated 1.4.2003, exempting spares, office equipments and furniture, professional equipments and consumables, but excluding agricultural and dairy products, when imported into India against a duty free service entitlement credit certificate issued under paragraph 3.8 of Export and Import Policy. Yet another Circular No.59/2004 dated 21.10.2004 was issued by the Government of India pertaining to the new schemes under Foreign Trade Policy for the period 2004 - 2009. 3.2 It is the case of the petitioner No.1 - company that in the year 2004, it imported certain second hand equipments, i.e. capital goods/professional equipments, more particularly, as mentioned in the Less Charge Demand Notice dated 2.8.2007 (hereinafter referred to as 'the Demand Notice'). This led to issuance of the Demand Notice dated 2.8.2007, ....
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....,414/- under Section 28 of the Act of 1962 together with interest. It has been further stated that in spite of availing the benefit of the Notification No.27/2002, the petitioner No.1 - company had debited the same duty under the DFCEC license in terms of Notification No.54/2003-Cus. dated 1.4.2003. It is also the case of the respondent authorities that since the capital goods imported by the party on re-export basis and assessed to duty at concessional rate under Notification No.27/2002, ownership of the goods was not vested in the petitioner No.1 - company and though condition No.2 provides for the certificate and goods imported against it shall not be transferred or sold, the petitioner, prima facie, have contravened the said condition. Accordingly, the petitioner was issued Demand Notice dated 2.8.2007, requiring the petitioner No.1 - company to deposit the duty amount to the tune of Rs. 25,03,414/- as per the provisions of Section 28 of the Act of 1962. 4.1 So far as the inaction on the part of the respondent authorities for not adjudicating the Demand Notice dated 2.8.2007 is concerned, it has been stated that due to reorganization of the department, the then office of the J....
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....evenue, Ministry of Finance, Government of India is in conformity/authorized by the provisions of Section 37B of the Central Excise Act, 1944. In view of the notice having been issued for the limited purpose, rest of the observations made by this Court deserves to be followed in the present case as well. 6.3 It is submitted that clearly and not disputed by the respondent authorities, the Demand Notice was issued on 2.8.2007 and thereafter, the respondent, has not addressed a single communication to the petitioners. Moreover, even after the reply dated 8.10.2007 filed by the petitioners, no communication worth the name has been addressed by the respondent authorities to the petitioner No.1 - company. 6.4 It is further submitted that as is evident from the contents of the affidavit-in-reply, the only ground which has been put forth by the Revenue is that owing to the reorganization of the department and upgradation of office of the Joint Commissioner of Customs to the office of Principal Commissioner of Customs and during the shifting of the office, the documents pertaining to the Demand Notice might have been misplaced. Except the said ground, nothing has been stated in the reply,....
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.... in abeyance. The issue is no longer res integra in principle. 9. This Court, in the case of Siddhi Vinayak Syntex Pvt. Ltd. (supra) has in detail held and observed that where the department has kept the proceedings in call books, it would be impermissible for the department to reactivate the same after years together and more particularly, when the noticee has not been informed or communicated about transferring the matter to the call book and therefore, the action would be in breach of the principles of natural justice. The relevant paragraphs 23 to 27 of the said judgment, read thus:- "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. 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....
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....legislature in its wisdom has prescribed a particular time limit, the CBEC has no power or authority to extend such time limit for years on end merely to await a decision in another case. The adjudicatory authority is required to decide each case as it comes, unless restrained by an order of a higher forum. This court is of the view that the concept of call book created by the CBEC, which provides for transferring pending cases to the call book, is contrary to the statutory mandate, namely, that the adjudicating authority is required to determine the duty within the time frame specified by the legislature as far as possible. Moreover, as discussed herein above, there is no power vested in the CBEC to issue such instructions under any statutory provision, inasmuch as, neither section 37B of the Central Excise Act nor rule 31 of the rules, 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 concl....
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....gs, therefore, is in complete breach of the principles of natural justice and hence, the impugned show cause notice and the order-in-original passed pursuant thereto, cannot be sustained. 27. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned Order-in-original No.AHM-EXCUS- 003-040-15-16 dated 11.3.2016 as well as the Show Cause Notice F.No.V.54/15-29/OA/98 dated 3.8.1998 are hereby quashed and set aside. Rule is made absolute with no order as to costs." 10. The decision in the case of Siddhi Vinayak Syntex Pvt. Ltd. (supra) has been challenged by the Union of India before the Supreme Court of India, wherein the Supreme Court of India has passed following order dated 28.7.2017. "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.162/73/95- CX dated 14th December, 1995 issued by the Central Board of Excise and Customs, Signature Not Verified Department of Revenue, Ministry of Finance, Government of India is in conformity/authorized by the provisions of Section 37B of the C....
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....hich dismissed the Special Leave Petition (Civil) No.008638/2018 (Diary No.7026/2018). The Apex Court has passed the following order:- "Heard the Learned Counsel for the petitioners and perused the relevant material. Delay condoned. We do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed." 12. In another decision in the case of Pooja Tex Prints Private Ltd. (supra), this Court, while allowing the writ petition, quashed the Ordersin- Original. In the said case, the show-cause notice was issued in the year 2002. Reply was filed by the petitioner therein, however, no hearing took place till the year 2016. During the interregnum, proceedings remained dormant and the reason for keeping the proceedings in abeyance or the reason for reactivation were not communicated to the petitioners therein. The unit of the petitioners was closed down in the year 2006 when the competent authority activated the show-cause notice proceedings. The co-ordinate bench, as aforesaid, allowed the writ petition; whereby, Order-in-Original came to be quashed and set aside. 13. Yet in another decision in the case of Shivkrupa Processors Pvt. Ltd. (supra), the ....
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.... was almost after 15 years of the remand by the Appellate Tribunal, that the authorities therein scheduled the personal hearing in the year 2020. The grievance on the part of the petitioner was that purported adjudication of the show-cause notice after inordinate delay of 15 years was, inter alia, without jurisdiction and in violation of the principles of natural justice. This Court, observed that the Courts have always given primacy to the public interest and also have heavily curbed the attempts to economic offence and dealt with the offenders in stringent manner. At the same time, it has also struck a balance by upholding the cause of litigant; if there is unexplained delay in proceeding with the adjudication of the show cause notice without any cause attributable to the parties concerned. Relevant paragraphs 16, 20 and 21 are reproduced herein below:- "16 It is, thus, quite clear that the Courts have not approved transfer to the call book for number of years and pendency of adjudication for a protracted period. The Courts have always given primacy to the public interest and also have heavily curbed the attempts to economic offence and dealt with the offenders in stringent man....
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....ation to discharge such powers with extreme sense of responsibility. 21 The Court also notices that not only the factory of the petitioner had been closed, but the registration also had been surrendered with the permission of the respondent authority and the factory has been sold off in the year 2012. It is virtually impossible for anyone to then defend as the respondent itself does not have the papers and it was asking for the reply of the respondent. Even if that aspect is not considered, expecting the petitioner to adduce the evidence of the closed factory after 15 years is virtually impossible. This would amount to serious prejudice and breach of principles of natural justice and, therefore, also this petition deserves to be allowed noticing that before the Apex Court, limited issue of challenging the circular and subsequently in the case of M/s. Parimal Textiles (supra), the Court also referred that fact and has dismissed the petition. Therefore, there is no reason for this Court not to follow the said decision." 15. At this stage, one more aspect is required to be considered that is, the judgments cited are dealing with the provisions of Section 11A of the Central Excise A....