TaxTMI 
TaxTMI 
2025 (1) TMI 67
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....e find that the proceedings had commenced 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 ....
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....vice in the matter. In view of the above mentioned facts, 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 o....
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....een provided. In Nanu Ram Goyal I, this Court had an occasion to address the issue 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 F....
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....tter dated February 23, 2021 addressed by the petitioner seeking a copy of closure report, if any. 21. A perusal of the said reply from respondent 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. ....
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....llows: "F.No. CBIC-90206/1/2021-CX-IV Section-CBEC Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs **** Room No. 244 C. North Block, New 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....
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.... file explaining delay. It is, therefore, reiterated that timelines of completing adjudication process must be followed and in exceptional cases of delay beyond stipulated period, reasons for the delay must be recorded on file. 4.4 Audit in its report has also pointed incidences of periodical non- review of Call Book cases, non/delayed retrieval 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, reit....
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....." 4.5.2 In this regard it may be noted that vide aforesaid Chairman's D.O letter dated 26.04.2018, it was directed that full cooperation with the C&AG team would be provided by providing complete and comprehensive information available with the concerned Commissionerate. Any feeble excuses in this regard would not be entertained. 4.5.3 In this regard reference is invited to Circular dated 29.04.1988 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.....
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.... 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 kept in a call book. The respondents have not given a semblance of an answer as to whether any such periodical ....
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....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 9 th 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. xxxx xxxx xxxx 16. Falling back upon the CBIC circular, 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 ....
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....stretching the argument to the extent that the show cause notice dated 13th August 1990 was subjudice before the Apex Court in Civil Appeal No. 3973 of 2001, there is no basis or explanation on the part of the respondents to have kept the show cause notice in its call book without proceeding for its adjudication after the judgment rendered in that case by the Apex Court on 5th May 2004. None of the other two conditions as indicated by the respondents at Clause 3 and 4 quoted above also stand 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 199....
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....onstricted by factors beyond its control which prevented it from moving with reasonable expedition. This principle would apply equally to cases falling either under the Customs Act, the 1994 Act or the CGST Act. 86. When we revert to the facts that obtain in this batch, we find that the respondents have clearly failed to establish the existence of an insurmountable constraint which operated and which could be acknowledged in law as impeding their power to conclude pending adjudications. In fact, and to the contrary, the frequent placement of matters in the call book, the retrieval of matters therefrom and transfer all over again not only defies logic it is also demonstrative of due application of mind quite apart from the said procedure having been found by us to be contrary to the procedure contemplated by Section 28. The respondents have, in this regard, failed to abide by the directives of the Board itself which had contemplated affected parties being placed on notice, a periodic review being undertaken and the proceedings having been lingered unnecessarily with no plausible explanation. The inaction and the state of inertia which prevailed thus leads us to the inevitab....