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Shree Shakambari Silk Mills & 1 Versus Union of India And 1

2017 (12) TMI 712 - GUJARAT HIGH COURT

Activation of adjudicating proceedings after a long gap over a decade - SCN was kept in abeyance - 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 - case of appellant is that proceedings were kept in abeyance for over 15 years without any reason or explanation and the reason for the same was never communicated to the petitioners - Held that: - the show cause notices were issue .....

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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 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 .....

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Application No. 16016 of 2017 - Dated:- 13-12-2017 - MR. AKIL KURESHI AND MR. A.Y. KOGJE, JJ. For The Petitioner : Mr Hasit Dave, Advocate For The Respondent : Mr Ankit Shah, Advocate And Mr Devang Vyas, Advocate ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These petitions involve similar questions of facts and law with minor factual differences which are wholly inconsequential. We may record facts from SCA No.12477 of 2017. 2. The petitioners have challenged Order in Original dated .....

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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 . .....

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ice proceedings were kept in abeyance for over 15 years without any reason or explanation and the reason for the same was never communicated to the petitioners. Counsel submitted that the proceeding for which show cause notice was kept pending was decided by the Supreme Court in the year 2012. The decision was rendered in favour of the assessees. If this was the reason for keeping the proceeding in abeyance, it defies logic that the adjudicating authority has now confirmed the duty demand contra .....

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dency of the proceedings. The proceedings were kept in abeyance to avoid 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 sen .....

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7 held as under:- 23. Insofar as the show cause notice in the instant case is concerned, the same has been issued under section 11A of the Act. Proceedings under section 11A of the Act are adjudicatory proceedings and the authority which decides the same is a quasi-judicial authority. Such proceedings are strictly governed by the statutory provisions. Section 11A of the Act as it stood at the relevant time when the show cause notice came to be issued, provided for issuance of notice within six m .....

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ect of cases falling under sub-section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4) or subsection (5). 24. Thus, with effect from the year 2011 a time limit has been prescribed for determining the amount 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 ha .....

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ure has used the expression where it is possible to do so, it means that if in the ordinary course it is possible to determine the amount of duty within the specified time frame, it should be so done. The legislature has wisely not prescribed a time limit and has specified such time limit where it is possible to do so, for the reason that the adjudicating authority for several reasons may not be in a position to decide the matter within the specified time frame, namely, a large number of witness .....

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when the legislature in its wisdom has prescribed a particular time limit, the CBEC has no power or authority to extend such time limit for years on end merely to await a decision in another case. The adjudicatory authority is required to decide each case as it comes, unless restrained by an order of a higher forum. This court is of the view that the concept of call book created by the CBEC, which provides for transferring pending cases to the call book, is contrary to the statutory mandate, na .....

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nstructions 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 to be a plausible explanation for not adjudicating upon the show cause notice within a reasonable time. In view of the settled legal position, as propounded by various High Courts, with which this court is in fu .....

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uch a situation, the decision in the case of the petitioner should be governed by the decision of the Appellate Tribunal. However, the respondents after keeping the matter in the call book for fifteen years, have thereafter chosen not to follow the outcome of the other matter wherein the show cause notice had been dropped by the adjudicating authority, and the Appellate Tribunal had dismissed the appeal, albeit on grounds other than on merits. 26. Moreover, as is evident from the facts noted her .....

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