TaxTMI 
TaxTMI 
2022 (8) TMI 1090
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....acturing, were classified under Chapter heading 48.11 of the Central Excise Tariff Act 1985. It was respondents' case that electrical grade insulating papers that petitioner manufactured was classifiable under Chapter heading 85.46 of the first schedule to the Central Excise Tariff Act 1985. 3. Petitioner had received a notice dated 28th June 1989, calling upon to show cause as to why petitioner's product should not be classified as paper covered, coated laminated plastic attracting central excise duty @35% as per notification no.64/88 dated 1st March 1988 as amended by notification no.54/89 dated 1st March 1989. Petitioner by a letter dated 20th July 1989 replied to the show cause notice. 4. By an order dated 7th September 1989, the then Assistant Collector approved the classification list effective from 1st April 1989 under Rule 173B of the Central Excise Rules, 1944 without any modification. Later, the show cause notice issued came to be withdrawn. Petitioner was issued two further show cause notices dated 28th September 1990 and 7th February 1991, calling upon to show cause as to why the differential central excise duty on the product cleared by petitioner during March 1990 t....
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....to petitioner at 11.30 a.m. on 25th February 2022 before respondent no.3. By its letter dated 23rd February 2022, petitioner informed the said Superintendent that due to non-availability of the related papers, it is very difficult for petitioner to attend the personal hearing on 25th February 2022 and requested for deferring the personal hearing and in the meanwhile requested to provide to petitioner copies of show cause notices and replies. The said show cause notices and replies were supplied by Superintendent by a letter dated 23rd February 2022. This was followed by another letter dated 3rd March 2022 from respondent no.3 informing petitioner that respondent no.3 would give a personal hearing at 11.30 Hr. on 7th April 2022. At this stage, petitioner approached this court for quashing the said show cause notices on various grounds including that delayed adjudication of those show cause notices is in breach of principles of natural justice and contrary to law laid down by the courts. 9. Mr. Shah submitted that petitioner was under the impression that department was not interested in prosecuting the show cause notices and had abandoned it. These proceedings according to Mr. Shah ....
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....ioner should be deemed to be aware that 16 show cause notices were still alive and respondents were interested in prosecuting the show cause notices and have not abandoned it. Mr. Mishra also submitted that petitioner was intimated about the show cause notices being kept in call book. 12. We would, at the outset, state that we are not impressed with the stand taken by respondents and the submissions made by Mr. Mishra. As regards the intimation regarding the show cause notices being kept in call book, the only document annexed to the affidavit in reply is dated 14th October 2020, which is 29 years after the first show cause notice was issued and 26 years after the 16th show cause notice was issued. Moreover, the said intimation is totally silent as to when the show cause notices were transferred to the call book. Even in the affidavit in reply, respondent no.2 is secretive about the date on which the show cause notices were transferred to call book. Respondent no.2 simply states "the show cause notices were transferred to call book in view of case pending in CESTAT". Nothing prevented respondent no.2 from disclosing the date on which the notices were transferred to call book. We w....
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....d petitioner's case to appropriately meet the show cause notices because the delay in taking up adjudication of show cause notice primarily in the absence of any fault of the party complaining is a facet of breach of principles of natural justice and impinges on procedural fairness. The court held that revenue should have put petitioner's to notice that the show cause notices will be taken up for consideration after some event and/or time, when it is not possible to hear in a reasonable time. Paragraphs 3, 4, 6, 9, 10 and 11 read as under: 3. The grievance of the petitioner is that by issuing notices for personal hearing long after the impugned show-cause notices i.e. between 14 to 17 years of its issue and after 15 years of the last hearing in 2003 in respect of some of the impugned notices, is bad in law. This revival of abandoned show-cause notices long after the last hearing in 2003, causes prejudice to the petitioner as the relevant documents pertaining to the impugned notices were not available, so as to appropriately meet the charge in the impugned show-cause notices. It is, therefore, submitted as held by this Court that even in the absence of any time limit being provide....
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.... the above, particularly as in this case, long delay has resulted in papers being misplaced. The reasonable period may vary for case to case. However, when the notices are being kept in abeyance (by keeping them in the call book as in this case), the Revenue should keep the parties informed of the same. This serves two fold purpose One it puts the party to notice that the show cause notice is still alive and is only kept in abeyance. Therefore, the party can then safeguard its evidence, till the show cause notice is taken up for adjudication. Secondly, if the notices are being kept in the call book for some reason, the party gets an opportunity to point out to the Revenue that the reasons for keeping it in call book are not correct and the notices could be adjudicated upon immediately. This is the transparent manner in which the State administration must function. 10. In fact, we note that the above manner of functioning is the objective of the State administration, as our attention has been drawn to the CBEC Circular No.1053 of 2017 dated 10/03/2017. In paragraph 9.4 of the above circular of CBEC has directed the officers of the department to formally communicate to the party t....
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....writ jurisdiction of this Court, the show-cause notice would have continued to gather dust. The petitioners, in such circumstances, cannot possibly be worse off for seeking a Constitutional remedy and thereby suffer an order to facilitate conclusion of the proceedings which, because of the inordinate delay in its conclusion, is most likely to work out prejudice to them. 16. Article 14 of the Constitution of India is an admonition to the State against arbitrary action. The State action in this case is such that arbitrariness is writ large, thereby incurring the wrath of such article. It is a settled principle of law that when there is violation of a Fundamental Right, no prejudice even is required to be demonstrated." We respectfully agree with the view expressed by the division bench of this Court in Sushitex Exports (India) Ltd. (supra). 16. After 31 years, petitioner having approached this Court impugning the show cause notice, cannot be made to suffer an order to facilitate conclusion of the proceedings which, because of the inordinate delay in its conclusion, is most likely to work out prejudicial to them. 17. In our view, therefore, it would only be reasonable for petitio....