2024 (6) TMI 682

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....de communication dated 12th June 2013. For SCN-1, personal hearing was granted on 5th January 2012 and petitioner filed written submissions dated 19th January 2012. For SCN-2, no personal hearing was provided. 3. Petitioner received two notices dated 26th November 2020 and 11th January 2021 calling upon petitioner to attend the personal hearing. It is at this stage, petitioner filed this petition on 25th January 2021. By an order dated 24th January 2022, ad-interim relief was granted to petitioner and same is continued as on date. 4. Since the pleadings in the petition are completed, with consent of the counsel, we decide the petition finally at the admission stage itself. Therefore, Rule. Rule made returnable forthwith. 5. The facts as narrated above are not disputed. The stand taken in the affidavit in reply filed through one Milind Gawai affirmed on 20th January 2022 is that both show cause notices were transferred to call book on 22nd June 2012 in view of department's appeal in the Apex Court in Malabar Management Services Pvt. Ltd. 6. In additional affidavit in reply filed through one Sumit Kumar affirmed on 5th April 2023 pursuant to the directio....

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....oceedings are still alive and the answering party can thus safeguard the necessary evidence etc. till such time as the show cause notice is taken up for adjudication; and/or (b) the answering party could at that stage itself contest the show cause notice and/or point out why the same should be taken up for adjudication. iv. Failure to keep the answering party informed about the fate of the show cause notice and delay in adjudicating the same (for no fault of answering party) impinges on procedural fairness and is thus a violation of the principles of natural justice; v. Adjudication proceedings, delayed for more than a decade (for no fault of answering party and without putting answering party on notice for the reason of delay), defeats the very purpose of issuing show cause notice/s and such delayed adjudication is bad in law; vi. An answering party who does not hear from the authorities for more than 10 years after issuance of show cause notice and submission of reply thereto is justified in taking the view that the reply had been accepted and the authorities had given a quietus to the matter; vii. It is not open to authorities to reop....

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....ondents have placed reliance. The least that was expected from Respondents was that they would have produced a copy of the relevant circular on which reliance has been placed. Another fact that is to be noted is that the circular relied upon by Respondent is dated 2003 and the impugned notices were issued in the year 2008/2009. Hence, absent production of the said circular and/or a proper explanation as to the contents of the same, Respondents contention that the impugned notices had been transferred to call book based thereon is completely unintelligible and mere ipse dixit. Thus, in the facts and circumstances of the present case, we have no hesitation in holding that Petitioner was entirely justified in concluding that Respondents had abandoned the impugned show notices. B. Additionally, even on merit, we find that the impugned order is liable to be quashed and set aside. We find that there has been a deliberate dereliction of duty on the part of Respondent No. 3 because Respondent No. 3 has brazenly glossed over and ignored the specific submissions and case law relied upon by Petitioner pertaining to adjudication of stale show cause notices without so much as even atte....

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.... (supra) which in turn relies upon the judgment of the Hon'ble Supreme Court of India in the case of the Assistant Commissioner of State Tax & Others vs M/s Commercial Steel Ltd. dated 3rd September, 2021 passed in Civil Appeal No. 5121 of 2021 and reads thus, viz., 13. In this context, we consider it useful to also refer to paragraphs 11 and 12 of the decision in Commercial Steel Limited (supra) cited by the petitioner. Paragraphs 11 and 12 are quoted below:- "11. The respondent h ad a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12. In the present case, none of the above exceptions was established. There was, in fact, no v....

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....ould not make any observation regarding the show cause notices being transferred to call book and the effect thereof. We are not inclined to adopt the course of action suggested by Ms. Desai. In Siddhi Vinayak Syntex Pvt. Ltd. (supra) which was an SLP filed by Union of India impugning the judgment of the Hon'ble Gujarat High Court in Siddhi Vinayak Syntex Pvt. Ltd. Vs. Union of India 2017 (352) ELT 455 (Guj), the Hon'ble Gujarat High Court has held that the Central Board of Excise and Customs was not empowered under Section 37B of the Central Excise Act, 1944 to issue instructions to the Central Excise Officer to transfer the show cause notices  to call book and keep the same in abeyance. In the case at hand, petitioner is not challenging transfer of show cause notices to call book and keeping the same in abeyance, but is only raising a ground that non communication of transfer to call book is fatal to the case of respondents. Therefore, in our view, there is no impediment in proceeding to decide this matter. 11. Moreover, as is clear from affidavit in reply and as submitted by Ms. Desai, the reason why the show cause notices were transferred to call book was because of the....