TaxTMI 
TaxTMI 
2023 (2) TMI 893
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....aining to the period June 1993 to November 1993 (Annexure-5). (ii) For prohibiting the respondents from adjudicating upon the impugned show cause dated 9th December 1993. (iii) For setting aside the notice bearing no. 4790 dated 30th November 2022 (Annexure-8) and notice bearing no. 5223 dated 23rd December 2022 (Annexure-10) issued by respondent no. 4 which are notices of personal hearing pertaining to the show cause dated 9th December 1993 which again pertains to the period June 1993 to November 1993 as proceedings have been resumed after 29 years of the issuance of the show-cause and is in teeth of section 11A(11) of the Central Excise Act, 1944 (CEA for short hereinafter). 3. The relevant facts as pleaded by the petitioner are dealt with briefly hereunder. Petitioner which is engaged in the manufacture of iron and steel has a separate wing popularly known as 'Growth Shop' (maintenance shop) through which it used to get some of its plants and machinery manufactured/assembled/installed. Petitioner issued work order to its Growth Shop for manufacturing, assembling, erecting and testing electronic overhead cranes (for short 'EOC') for installation in the main steel plant of th....
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....appeals, we set aside the orders of the respondents as well as of the High Court and hold that no excise duty is payable on the E.O.T. cranes as assembled. The appeals are allowed. No order as to costs." 5. Later on the appeal of the petitioner was dismissed by Learned CEGAT, Kolkata on 8th December 2000. Petitioner preferred Civil Appeal No. 3973 of 2001 against the order of the learned CEGAT. It is pointed out that the show cause notice dated 13th August 1990 is related to the period January 1989 to January 1990 and thereafter several show cause notices were issued from January 1993 to February 1997. The present writ petition pertains to show cause notice dated 9th December 1993 and relates to the period June 1993 to November 1993. Petitioner submitted his reply on 10th February 1994. During the pendency of the show cause notice Civil Appeal No. 3973 of 2001 was decided by the Apex Court by partly setting aside the order of Tribunal and remitting the matter to the Tribunal for fresh examination. No adjudication proceedings were initiated against the petitioner pursuant to the impugned show cause notice dated 9th December 1993 till the judgment delivered by the Apex Court on 5t....
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....first condition is not fulfilled. So far as the conditions relating to grant of injunction mentioned under Clause B is concerned, there was no matter sub-judice after the judgment of the Apex Court in Civil Appeal No. 3973 of 2001 dated 5th May 2004. The respondents in their counter affidavit have also not given any explanation as to why even after 2004 the proceedings were not revived for adjudication of the impugned SCN till December 2022. The instant case also does not relate to an audit objection or a direction of the Board to keep the SCN in a call book. It is further submitted that as per the CBIC circulars, the case can be referred to call book only after prior approval of Jurisdictional Commissioner. In the entire counter affidavit the respondents have not annexed or brought on record any document to show that necessary approval was taken from the Jurisdictional Commissioner. It is further pointed out from the CBIC circulars issued from time to time such as Circular Nos. 385/18/98-CX dated 30th March 1998, 719/35/2003-CX dated 28th May 2003 and 1053/2/2017-CX dated 10th March 2017 that the competent authorities have been mandated to carry out periodic monthly review of SCNs....
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....tice be quashed. He has also referred to Rule 10 (3) of the Central Excise Rules 2002 which require an assessee to keep the relevant records up to a maximum period of five years. Rule 53(2) of the Central Excise Rules 1944 also contained a similar prescription of outer limit for maintaining the records. It is submitted that any adjudication on the impugned show cause notice dated 9th December 1993 after 29 years at this stage would be illegal and in contravention of the mandate of Section 11A(11) of the CEA 1944. 9. Learned counsel for the respondents Central Excise has defended the impugned proceedings and relied upon the contents of the show cause to support it. It is stated that impugned show cause dated 9th December 1993 was issued to the petitioner for contravention of the provisions of Rule 9(B), 52(A), 173(F) and 173(G) of the Central Excise Rules, 1944 read with Section 11 A of CEA, 1944 demanding differential duty of central excise so short paid by the petitioner during the material period. Besides the above, there were 10 SCNs/SODs issued upon the petitioner for subsequent period. The particulars of all 11 SCNs/SODs have been furnished in the form of a tabular chart unde....
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....ested by the petitioner were granted by the adjudicating authority and duly communicated to the Superintendent (ADJM), CGST and Central Excise, Jamshedpur vide letter dated 30th November 2022. The petitioner has been allowed eight weeks' time on his request and the date of personal hearing has been fixed on 15th February 2023 in respect of all the subjects 11 SCNs/SODs. After consideration of the case records SCNs/SODs, defence reply and judicial pronouncement and submissions written and oral to be made during personal hearing on 15th February 2023, the case will be decided accordingly. Learned counsel for the respondents submits that these proceedings have been rightly revived and are being adjudicated in accordance with the relevant provisions of Central Excise Act, 1944. Hence, request of the petitioner for quashing the subject SCN, as well as the letter for fixing personal hearing are unwarranted and does not hold merit. 11. Learned counsel for the respondents State submits that these impugned demand notices are in respect of short levy or short payment of duty of central excise in terms of Section 11A of the CEA and the Central Excise Rules. The officers of the central excise....
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....the assessee to show that cranes were cleared by them in knocked down condition. The impugned goods cleared by them were classifiable as crane parts under sub-heading 8431.00 of CETA 1985. Petitioner again went in appeal before the Apex Court in Civil Appeal No. 3973 of 2001 which was also allowed vide judgment dated 5th May 2004 in the following terms: "This Court allowed the appeals of the appellants against the decision of the Patna High Court, set aside the orders of the respondent as well as of the High Court and held that no excise duty is payable on the E.O.T. cranes as assembled. In result we set aside this part of the order made by the Tribunal and remit the matter to it for fresh examination in the light of the order of this Court." 14. It is further submitted that in I.A. No. 2 in Civil Appeal No. 3973 of 2001 preferred by the noticee before the Apex Court for clarification of the judgment dated 5th May 2004 vide order dated 31st January 2005 it was held "The prayer made in the application does not fall within the purview of clarification. The application is rejected." (Annexure-E4). 15. Learned counsel for the respondents has also taken us to the different positions....
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....ubmission of learned counsel for the parties, taken note of the relevant material facts pleaded and borne from the records and also the CBIC circulars cited by the parties and the decisions relied upon by learned counsel for the petitioner. 18. The facts as borne out from the pleadings on record need no repetition. The impugned show cause is of 9th December 1993 (Annexure-5) issued upon the petitioner asking them to show cause as to why the appropriate excise duty amounting to Rs. 1,67,42,847.30 be not imposed upon him under the provisions of Rules 9(B), 52A, 173(B), 173(F) and 173(G) of Central Excise Rules, 1944 and Section 11A of the CEA, 1944 alleging less payment of duty due to misclassification. The respondents had kept the impugned show cause notice and ten other SCNs as indicated in the chart above in the call book on the ground that the matter was sub-judice. However, from the pleadings on record and also from the averments made in the counter affidavit, it appears that none of the conditions as enumerated in the CBIC circular / guidelines relied upon by the respondents and also by the petitioner stood satisfied for transferring the matter to the call book. It is not a ca....
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....ch can be transferred to call book viz.: 1. Cases in which the Department has gone in appeal to the appropriate authority. 2. Cases where injection has been issued by Supreme Court/High Court/CEGAT, etc. 3. Cases where audit objections are contested. 4. Cases where the Board has specifically ordered the same to be kept pending and to be entered into the call book." In circular dated 28th May 2003 : "3. It is further directed that a one-time comprehensive review of all the pending call book cases will be done by respective CCEs. The Chief Commissioner may monitor such review periodically in their respective zones. The progress report of the call book cases should continue to mention in the MTR as well as in the monthly statements of the progress achieved in "Key Result Areas". In circular dated 10th March 2017 : "9.4 Intimation of Call Book cases to notice: A formal communication should be issued to the notice, where the case has been transferred to the call book." 19. In this regard, it is pertinent to refer to the provisions of Section 11A of the CEA which reads as under :- SECTION 11A OF THE CENTRAL EXCISE ACT, 1944 "SECTION 11A- Recovery of duties not levied....
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.... the attention of the various jurisdictional High Courts such as the Bombay High Court and the Punjab and Haryana High Court of which the judgments rendered in the cases of Eastern Agencies Aromatics Private Limited Vs. Union of India & Ors,. para-14 to 17 and Harkaran Dass Vedpal Vs. Union of India, para-3, 9 and 11 to 15 have been specifically relied upon by the petitioner. 21. Petitioner has also relied upon the recent judgment of the Apex Court, in Special Leave to Appeal (Civil) No. 12376 of 2022 dated 29th July 2022 arising out from a judgment of Punjab and Haryana High Court wherein the show cause notice remain unadjudicated for 11 years. In the peculiar facts and circumstances of the case the Apex Court refused to interfere in the matter and the special leave petition was dismissed. The decision in the case of Eastern Agencies Aromatics Private Limited (Supra) relates to the delay of nine years in adjudication of a show cause notice under Section 28 of the Customs Act, 1962 which also contains a similar provision "if it is possible to do so". The opinion of the learned Bombay High Court at para 14 to 17 are quoted hereunder for easy reference: 14. Perusal of the show cau....
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....e notice. Petitioner is also right in contending that even otherwise pendency of proceedings was not in respect of the Petitioner. Hence it is obvious that revival of show cause notice will seriously prejudice the Petitioner. 17. In the present case, reasons given by the Respondents for the delay caused in seeking to revive the show cause notice do not constitute any reasonable ground and the delay caused is not sustainable, as the same is in breach of the principles of natural justice. Though in Affidavit-In-Reply it is sought to be contented that the period of limitation prescribed by the amending Act, 2018 is not applicable to the present show cause notice of the year 2013, nothing was argued before us in support of this contention. In our view, even otherwise the powers of such nature of adjudicating the show cause notice are required to be exercised within reasonable time. We do not find any justification for the inaction on the part of the Respondents for keeping the adjudication of the show cause notice pending and for seeking revival of the same after a period of 9 years. For the reasons recorded above, the show cause notice impugned in the Petition is required to be quas....