TaxTMI 
TaxTMI 
2023 (6) TMI 748
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....y this common order. 2. The petitioner in all these writ applications have initially challenged the respective show cause notices (SCN) of the year 1994 to 1997 and the respective notices of personal hearing issued in the year 2022, i.e., after a lapse of about 27 to 29 years. During pendency of these writ applications the respondent-Department vide its common Order in Original (OIO) dated 17.2.2023; confirmed the demand as made in the respective show-cause notices. The petitioner thus filed interlocutory application in respective applications which was allowed by this Court and the common Order in Original dated 17.2.2023 confirming the demand in the respective show-cause notices has been impugned. 3. It may be noted at this stage itself that the personal hearing notices was issued in respect of 11 show cause notices; against one such notice dated 9.12.1993 for the period June, 1993 to November, 1993, the petitioner had moved this Court in W.P.T No. 308 of 2023. This Court vide its order dated 14.2.2023 quashed the show cause notice along with the notice of personal hearing on the ground of inordinate delay. For brevity the details of show cause notices and its period is men....
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....5. Earlier, a Show Cause Notice dated 08.02.1984 was issued to the petitioner by the Collector of Central Excise, Jamshedpur stating inter-alia that Growth Shop was removing Electronic Overhead Crane (EOC) without payment of duty. It was further alleged that Growth Shop wrongly availed the benefit of Exemption Notification No. 118/75-CE dated 30.04.1957 as the goods cleared were not parts of Crane but a fully functional Crane. The Petitioner duly replied to the said Show Cause Notice by stating that no complete Crane was assembled/manufactured in the Growth Shop and it was assembled and installed finally at the Steel Plant of TISCO, Jamshedpur, and, what was cleared was parts of Crane. Final assembly, erection and commissioning of Crane was done at Jamshedpur Plant. However, the Collector did not agree with the contentions of the petitioner and held that the goods removed by the growth shop of the petitioner was a fully functional crane and levied excise duty @ 20% ad valorem. Being aggrieved, the petitioner preferred a writ petition before the Patna High Court being C.W.J.C. No. 3764 of 1985. The Hon'ble Patna High Court decided the case against the petitioner and held t....
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....urt vide order dated 5.5.2004, partly set aside the order of the Tribunal dated 8.12.2000 (in the light of the order dated 9.2.2000 passed in Civil Appeal No. 782 of 1987) and remanded the matter back to the Tribunal for fresh examination. Thereafter, there has been no adjudication of the show cause notice dated 3.1.1995 impugned in W.P.T. No. 826 of 2022 and similar show cause notices involved in other writ petitions; details of which have already been stated herein above. It may be noted that in file recording brought on record by the petitioner, there is no noting between the period 2000 to 2007. However, on 31.1.2007, the Additional Commissioner first recommends taking out the case from Call Book since the issue had attained finality. However thereafter on 26.10.2007 it has been recorded that since the earlier show cause notice i.e., dated 13.8.1990, was pending before Tribunal, the case may be continued in call book. The Commissioner accorded permission of the same on 26.10.2007. No further file noting has been brought on record after 20.10.2007. 9. Unexpectedly, on 30.11.2022, for the first time, after a lapse of about 28 years, a notice for personal hearing was issu....
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....23, counter affidavit was filed to both the Writ Petition as well as the interlocutory application. Thereafter on 27.04.2023 a rejoinder was filed. 11. Mr. Tarun Gulati, learned counsel for the petitioner assisted by Mr. Salona Mittal has made following submissions:- (i) The present dispute is squarely covered by the decision rendered in W.P.(T) No. 308 of 2023 which was delivered by this Court on 14.02.2023. This Court in the said case have authoritatively held that adjudication of show cause after 29 years would be contrary to the mandate of Section 11A(11) of the Central Excise Act, 1944 and would lead to unreasonable and arbitrary results. (ii) Judicial propriety and judicial discipline required the respondents to await the adjudication of the present writ applications. Though the Commissioner was aware and apprised that one writ application of same nature has been allowed by this Court but he acted in undue haste and deliberately decided the 10 show cause notices just after 3 days of the order passed in W.P.(T) No. 308 of 2023. In this regard he referred to the judgment passed in the case of Godrej Sara Lee Ltd. Vs. Excise & Taxation Officer, reported in (....
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....cases is squarely covered. For brevity relevant portion of the judgment passed in W.P.(T) No. 308 of 2023 is quoted hereinbelow:- "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 record and also from the averments made in the counter affidavit, it appears that none of t....
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....2-CX.3, dated 4th March 1992 and Board's Circular No. 53/90-CX.3, dated 6.9.1990). 2. The Board vide its <> 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 : "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....
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....ct 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 subsection (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 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 Limit....
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....g 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 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....
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....7.02.2023, they passed the common order in original (OIO) affirming the demand as made in the 10 show cause notices. This action of the Respondent Commissioner is against the settled principles of law which demands that the Revenue Officers are bound by the decisions of the appellate authorities and that the principle of judicial discipline requires that the orders of the higher appellate authorities are followed unreservedly by the subordinate authorities. In this regard reference may be made to the case of Godrej Sara Lee Ltd. (supra) wherein the Hon'ble Apex Court has held at paragraph nos. 23, 35 and 39 as under. "23. Our attention was drawn by Mr. Lakshmikumaran to the decision of this Court reported in 1992 Supp (1) SCC 443 (Union of India v. Kamlakshi Finance Corporation Ltd.) in support of the proposition that in disposing of quasi-judicial issues before them, the Revenue Officers are bound by the decisions of the appellate authorities and that the principle of judicial discipline requires that the orders of the higher appellate authorities are followed unreservedly by the subordinate authorities. 35. In our view, the Revisional Authority might have bee....
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....s attempted to make the present writ petitions infructuous. When the show cause notices were kept pending for 26 -27 years; there was no reason to proceed with such great speed in passing the impugned order. In this regard reference may be made to the case of Parle International Ltd. Vs. Union of India & Ors. passed in W.P. No. 12904 of 2019 order dated 26.11.2020 wherein the Hon'ble Court has held at paragraph Nos. 24, 25, 26, and 28 as under:- "24. There is one more aspect which we would like to point out. Respondents had not taken any action pursuant to the show-cause notices for long 13 years till issuance of notice for personal hearing on 13.08.2019. After the petitioner approached this Court by filing the present writ petition on 06.09.2019 with due intimation to the respondents, respondent No. 3 went ahead and passed the order-in- original dated 11.11.2019. We fail to understand when the respondents could wait for 13 long years after issuance of the show-cause notices, there could not have been any earthly reason to proceed at such great speed and pass the order-in-original before the Court could adjudicate on the correctness of the action of the respondents. Is it ....
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....o render the court scrutiny redundant. Such an approach is neither acceptable nor permissible. 28. Thus, having regard to the discussions made above and taking an overall view of the matter we have no hesitation to hold that respondents were not justified in commencing adjudication proceeding 13 years after issuance of the show-cause notices dated 01.06.2006 and 28.11.2006. Such adjudication proceeding is therefore, held to be invalid. Consequently, impugned order-in- original dated 11.11.2019 issued by respondent No. 3 would also stand interfered with. It is accordingly set aside and quashed." 16. It appears that the learned Commissioner has sought to justify its action by making following statement made in the Order in Original and in the counter affidavit which are quoted hereinbelow:- Order in Original (i) Para 7.5(vii) at Page 10 of OIO - ". the Noticee have nothing to defend the case, they have filed Writ Petition to quash SCN C. No. MP- 14/TGS/D/92/970_dated 9.12.1993, on the ground of inordinate delay in adjudication and bypassed the stablished norms". (ii) Para 7.5(vii) at Page 10 of OIO - "Further adjournment, so sought. By the Notic....
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....tatively decided by this Court in W.P.(T) No. 308 of 2023. The file notings brought on record by the respondent also does not help them in any manner; rather, it only justifies the order passed by this Court that there existed no circumstances for transfer of cases to the call book as per the circulars issued by the department itself. In this regard we observe that there is no justification/reasoning either in the counter affidavit or the file notings as to why the show cause notices were taken out of the call book only in November, 2022. There is nothing to indicate any change in circumstances which led to taking out of the cases from the call book. Apart from the other grounds, some semblance of justification is sought to be given by the respondent in the counter affidavit where they have stated that since the issue of classification had been settled, accordingly it was decided to take the show cause notices out from the call book. At multiple places in the impugned order, it has been stated that the issue had attained a finality in 2004 itself. Regarding this stand, we hold that since the issue did attain finality in 2004 itself, there was absolutely no justification in keepi....
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....ble Supreme Court. This is well settled by the judgment rendered in the case of Kunhayammed v. State of Kerala, (2000) 6 SCC 359 - Paras 14(4) and 28 are quoted hereinbelow:- 14 ....(4) In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. 28. Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [(1969) 2 SCC 74 : AIR 1970 SC 1] this Court vide para 7 has emphasised three preconditions attracting applicability of doctrine of merger. They are: (i) the jurisdiction exercised shoul....