TaxTMI 
TaxTMI 
2025 (1) TMI 67
X X X X Extracts X X X X
X X X X Extracts X X X X
.... pursuant to the issuance of a SCN on 21 April 2011. The petitioner is stated to have furnished its response to that notice on 16 August 2011 and thereafter appeared before the respondents for a personal hearing on 23 August 2012. 3. According to the writ petitioner, no further effective steps were taken for the conclusion of the SCN proceedings till 19 January 2018 when a corrigendum came to be issued. The proceedings, thereafter continued to linger and personal hearings took place in 2023 and which ultimately culminated in the passing of a final adjudication order on 31 January 2023. 4. In the counter affidavit which has been filed by the respondents, we find that the following stand has been taken: - "14. With reference to para No.13, the matter was kept in the call book with the approval of the competent authority on 22.04.2013. Delay in adjudication process also attributed by the petitioner also. The noticee vide letter dated 19.05.2011 requested adjournment of 15 days for submission of reply. Further the noticee vide letter dated 03.06.2011 requested for granting four weeks' time to examine the Notice and submit the reply. Noticee vide their letter dated 16.08.2011 su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acts, it is clear that the party had been continuously approached by way of letter of personal hearing much before 30.01.2023 and it was being ensured that party be given fair opportunity of being heard before deciding the adjudication proceedings in the present case so that law of natural justice is not violated. However, from requests of constant adjournments by the party it appears that it was never an intention of the party to have the matter decided soon. It appears now it was nothing more than a tactic to use the mercy of the law against the law itself. 15. With reference to para No.14, it is submitted that no order had been passed in August 2012 and therefore there arises no question of communicating a non-existent order to the party. Also, party themselves submitted reply on 13.09.2012 after the personal hearing on 24.08.2012 implying thereby no order had passed till that day. The delay in adjudication is attributed to the fact that the matter was in the call book for many years and thereafter party had been requested to appear for personal hearing on many occasions as explained herein above. However on all such occasions party had requested for adjournment in the matter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of whether the respondents were obligated to inform the petitioner that the SCN was being placed in the "call book" as per the Board's circulars. The Court noted that while placing matters in the "call book" was permissible, that action would have to be preceded by the assessee being placed on due notice. In that decision, it was observed as hereunder: "34. It is also relevant to note that the petitioner was provided no information that the impugned show-cause notice has been placed in the, "call book". Even if it is accepted that it is permissible for the respondents to place the matter in the "call book" which this Court does not-it was necessary for the respondents to have communicated the said fact to the petitioner. There are a series of decisions rendered by the Bombay High Court restraining the respondents from continuing with the proceedings in cases where the matters were placed in the "call book" without any information to the assessee. It is apposite to refer to a few of those decisions. xxxx xxxx xxxx 36. In ATA Freight Line (I) (P) Ltd. v. Union of India [ATA Freight Line (I) (P) Ltd. v. Union of India, (2023) 25 GSTR-OL 181 : 2022 SCC OnLine Bom 648] , the Bomb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent No. 2 indicates that the only information provided to the petitioner was that files were transferred to call book as per the circulars issued by the Central Board of Excise and Customs which has been revised from time to time. A copy of the Circular dated April 26, 2016 was enclosed by respondent No. 2 along with the said letter for reference of the petitioner. 22. A perusal of the said Circular dated April 26, 2016 relied upon by respondent No. 2 indicates that by the said circular, respondent No. 1 clarified that the cases where (i) the issue involved has either been decided by the Supreme Court or the High Court and such order has attained finality or, (ii) Board has issued new instruction or circular clarifying the issue involved, subsequent to issue of the order to transfer the case to the call book would be taken out of call book and adjudicated. The said circular also provides for various eventualities where file can be transferred to call book already referred to in the earlier paragraph of this judgment. 23. Neither the affidavit-in-reply nor the arguments advanced by the learned counsel for the respondents indicated that the petitioner was at any point of time inf....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Delhi, dated: 18 November, 2021 INSTRUCTIONS To 1. All Principal Chief/ Chief Commissioners of CGST, Central Excise and Service Tax; 2. All Principal Commissioners/ Commissioners of CGST, Central Excise and Service Tax; 3. The Director General of DGGI; Madam/ Sir, Subject : Audit para no. 5.1 to 5.18 of chapter V of Audit report no. 01 of 2021 on SCNs and adjudication process in CBIC regarding. Audit para no. 5.1 to 5.18 of chapter V of Audit report no. 01 of 2021 on Show Cause Notices and adjudication process in CBIC has made certain observations regarding issuance of SCNs and disposal of adjudication matters including call book cases. 2. Briefly, the Audit has pointed that (i) Draft SCNs have been found pending for issuance. (ii) There is inordinate delay in adjudication. (iii) Adjudication orders have not been issued within stipulated period after completion of personal hearings. (iv) Periodical review of call book cases has not been done. (v) In certain cases, the records/files pertaining to adjudication have not been produced before Audit Party. 3. With the introduction of GST law, Board has consistently expressed its desire and resolve that it is o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eval of SCNs from Call Book, incorrect transfer of SCNs to Call Book, resulting in irregular retention of cases in Call Book. 4.4.1 Kind attention is invited to Board's D.O letter F. No. 101/2/92- CX.3 dated 04.03.1992 wherein while indicating the categories of the cases to be transferred to call book, it was directed that a case should be transferred to call book only with the approval of Commissioner. Further, the Commissioners were instructed to review the Call book cases on monthly basis. These instructions have subsequently been reiterated vide Circular No. 385/18/98-CX, dated 30-3-1998 and Circular No. 719/35/2003-CX dated 28.05.2003. Audit has pointed out certain instances where Call book cases are not reviewed periodically, due to which, there are instances of delay in retrieval of Call book cases. It is therefore, reiterated that instructions in above mentioned D.O letter and subsequent instructions/circulars must be adhered to and Pr. Commissioners/Commissioners must review Call book cases on monthly basis. Non-adherence to these instructions shall be viewed seriously. 4.4.2 Audit has also pointed certain instances where noticees are not intimated about transfe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....88 issued from F.No. 240/15/88-CX.7 wherein it has been communicated that the files leading to passing of adjudication/appellate orders need not be made available to the audit parties of the Accountant General. It may be seen that the above-mentioned Circular was issued keeping in view the basic premise that audit parties cannot question the decision taken by the judicial or quasi-judicial authority. The said circular thus needs to be read in proper context that sharing of records with audit parties does not interfere with the judicial/quasi-judicial proceedings. The audit parties may require the production of the records for ensuring that due procedure is followed or otherwise. Therefore, the request of the Audit for production of records must be acceded to. 4.6 Attention is invited to the instructions issued by the Board vide Circular No. 716/32/2003-CX., dated 23-5 2003 wherein the Commissioners and Chief Commissioners have been directed to analyze the reasons for pendency of adjudication cases and strengthen the monitoring system. These instructions have also been reiterated from time to time. In this regard MPR DPM-ST-1A and DPM-CE-1A of the Monthly Progress Report (MPR) inc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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 kept in a call book. The respondents have not given a semblance of an answer as to whether any such periodical review was carried out by the competent authority. Referring to the Circular dated 10th March 2017, Clause 9.4 it is also submitted that whenever a case has been transferred to the call book a formal communication should be issued to the noticee. It is submitted that various courts have disapproved of such an approach to revive an adjudication proceedings after an inordinate delay in view of the conditions stipulated under Section 11 A (11) of the CEA. The expr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, it is contended that the competent authority i.e. the Commissioner, Central Excise has revived the proceedings and issued a notice of personal hearing to the petitioner since these SCNs/SODs were kept in call book on account of the matter pending before different courts including the Apex Court. However, on being specifically asked learned counsel for the respondent has not been able to dispute or indicate any explanation from the stand of the respondents as reflected in the counter affidavit as to whether there was any basis for keeping the SCN in call book after the decision rendered by the Apex Court on 5th May 2004 in Civil Appeal No. 3973 of 2001. There are no materials enclosed to the counter affidavit which also goes to show that the prior approval of the jurisdictional commissioner was taken before keeping the SCN into the call book. It is also not shown from the counter affidavit whether the petitioner was ever communicated of such a decision to keep the case in the call book all along and even after disposal of the Civil Appeal No. 3973 of 2001 vide judgment dated 5th May 2004. However, learned counsel for the respondent submits that the petitioner may be relegated to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and satisfied in the present case. The respondents have not enclosed any document to show that prior approval of the Collector of excise was taken before keeping the case in the call book. There seems to be no reference of any periodic review of the call book, though the relevant CBIC circulars such as the circular dated 30th March 1998 and 20th May 2003 specifically required the Commissioners to review the cases transferred to call books on a monthly basis in circumstances where the department was confronted with a situation where provisional assessment cases were kept pending for several years. The extract of the relevant circulars are quoted here under:- In circular dated 30th March 1998 : "While the Board had issued instructions to Commissioners to review the cases transferred to call books on a monthly basis, 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 < > 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.....