TaxTMI 
TaxTMI 
2023 (2) TMI 893
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..../92/970 dated 9th December 1993 issued by respondent no. 3 pertaining 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 o....
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....ra Steel Products Ltd. & Anr.). In view of the order of this court dated 12th February, 1997, in the said 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 pur....
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....ept pending and to be entered into the call book. It is submitted that the department has not gone in appeal against the order of the learned CEGAT and therefore the 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, 7....
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....Shree Baba exports wherein such a view has been affirmed. Based on these submissions learned Senior Counsel for the petitioner has prayed that the impugned show cause notice 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 a....
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.... adjudication proceedings on 28th November 2022 by the adjudicating authority i.e. The Commissioner, CGST and Central Excise, Jamshedpur (respondent no.1). Accordingly, a date for personal hearing in respect of all 11 SCNs/SODs, as requested 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 fo....
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....cause notice was issued on 13th August 1990 which was confirmed vide order in original dated 14th January 1991 by the Collector. Petitioner went in appeal before learned CEGAT which by its majority decision dated 8th December 2000 held that evidence was not produced by 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 date....
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....rned counsel for the respondent submits that the petitioner may be relegated to participate in the adjudication proceedings and if aggrieved, invoke the alternative remedy of appeal before the appellate authority i.e. learned CESTAT. 17. We have given anxious consideration to the submission 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 ....
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....s, it is observed that no such review is actually being done. (Board's DO Letter F.No.101/2/92-CX.3, dated 4th March 1992 and Board's Circular No.53/90-CX.3, dated 6.9.1990). 2. The Board vide its <<16354$Circular No.162/73/95-CX.3, dated 14.12.1995>> specified the following categories of cases which 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 : ....
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....ficer 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 sub-section (1); (b) within two year [substituted for one year w.e.f. 14-05-2016] from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (4) or sub- section (5)]. xxx xxx xxx 20. The issue at hand has crossed 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 ....
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....of the show cause notice. There is no dispute that the Petitioner was never intimated with respect to adjudication on the show cause notice or the same being kept in the call book. Learned counsel for the Petitioner is right in contending that the Petitioner is gravely prejudiced as the Respondents never informed the Petitioner about the show cause notice being kept in the call book and that due to passage of time the relevant papers may not be available and it will not be possible to defend the show cause 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 2....