TMI Blog2017 (12) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... ing was conducted. Without communication to the petitioners or reason for keeping the proceedings in abeyance, the proceedings were sent to call book. The proceedings were activated in the year 2017, again without any indication or reasons. The proceedings, which prompted the Department to defer the adjudication, came to be decided by the Supreme Court in the year 2012. In the meantime, the unit was shut down since long. Reliance placed in the case of SIDDHI VINAYAK SYNTEX PVT LTD. Versus Versus UNION OF INDIA & 2 [2017 (3) TMI 1534 - GUJARAT HIGH COURT], where it was held that After seventeen years, the persons who were conversant with the case may not be available, documentary evidence may have been displaced. Thus, the delay in decidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices dated 10.12.2001 and 08.09.2004 calling upon the petitioners to explain why customs duty leviable on the petitioners clearance to the DTA areas of the manufactured goods should not be levied along with additional duties. The petitioners had replied to such show cause notices at the relevant time. For the reasons which were not communicated to the petitioners, there was no progress in these proceedings for a long time. The case of the Department, which now emerges is that on account of the fact that a similar issue is pending before the Supreme Court, the proceedings were kept in abeyance, which in Department s parlance is referred to as sent to call book . Suddenly thereafter, nearly decade and half, the departmental authorities act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... multiplicity of litigation. The petitioners have not pleaded any prejudice on account of delay. 5. Few things emerge from the record. First is that the show cause notices were issued in the years 2001 and 2004. After petitioners filed their replies, no further development took place. No hearing was conducted. Without communication to the petitioners or reason for keeping the proceedings in abeyance, the proceedings were sent to call book. The proceedings were activated in the year 2017, again without any indication or reasons. The proceedings, which prompted the Department to defer the adjudication, came to be decided by the Supreme Court in the year 2012. In the meantime, the unit was shut down since long. In this regard, we may refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty of excise where it is possible. It cannot be gainsaid that when the legislature prescribes a time limit, it is incumbent upon the authority to abide by the same. While it is true that the legislature has provided for such abiding by the time limit where it is possible to do so, sub-section (11) of section 11A of the Act gives an indication as to the legislative intent, namely that as far as may be possible the amount of duty should be determined within the above time frame, viz. six months from the date of the notice in respect of cases falling under sub-section (1) and one year from the date of the notice in respect of cases falling under sub-section (4) or sub-section (5) . When the legislature has used the expression where it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to determine the duty within the time frame specified by the legislature as far as possible. Moreover, as discussed hereinabove, there is no power vested in the CBEC to issue such instructions under any statutory provision, inasmuch as, neither section 37B of the Central Excise Act nor rule 31 of the rules, envisage issuance of such directions. The concept of call book is, therefore, contrary to the provisions of the Central Excise Act and such instructions are beyond the scope of the authority of the CBEC. Transferring matters to the call book being contrary to the provisions of law, the explanation put forth by the respondents for the delay in concluding the proceedings pursuant to the show cause notice 3.8.1998 cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been dropped. During the interregnum the petitioners position has changed considerably. ln view of the fact that the factory of the petitioner company has been closed down and sold, it cannot be gainsaid that even if the petitioner was served with the notice of personal hearing, it would be difficult for it to defend the case inasmuch as in view of the lapse of time and intervening circumstances, the evidence might have been lost. After seventeen years, the persons who were conversant with the case may not be available, documentary evidence may have been displaced. Thus, the delay in deciding the proceedings, that too without bringing it to the notice of the petitioner that the case was transferred to the call book and was therefore pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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