TMI Blog2020 (12) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the findings recorded above, keeping in view the peculiar facts circumstances of the case and law laid down referred to above. Moreover, the Jammu Kashmir High Court has not granted any interim order in favour of the respondent(s)/ Revenue on the appeal filed after 1 year of passing of order of the Tribunal in case of supplier (seller) of goods to the petitioner (purchasers). The show cause notices having been issued long back more than a decade are not sustainable in the eyes of law, and thus, deserve to be quashed - petition allowed. - CWP No. 11990-2020, CWP No. 36547-2019 - - - Dated:- 4-12-2020 - HON BLE MR. JUSTICE JASWANT SINGH AND HON BLE MR. JUSTICE SANT PARKASH Mr. Jagmohan Bansal, Advocate, for the petitioner in CWP-11990-2020. Mr. Amrinder Singh, Advocate for the petitioner in CWP-36547-2019. Mr. Tajender Joshi, Senior Standing counsel for the respondents-UOI. Mr. Anshuman Chopra, Advocate for the respondent No.2 in CWP No.36547 of 2019. ORDER SANT PARKASH, J. The aforesaid presence is being recorded through video conferencing since the proceedings are being conducted in virtual court. This order shall decide af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raud, collusion etc., the period prescribed is one year. In the case in hand, the proceedings are pending for the last more than 10 years. Learned counsel has further submitted that though the respondent Department filed CEA No.8/2020 on 16.01.2020 before Jammu and Kashmir High Court against decision dated 28.08.2018 passed by the Tribunal but filing of appeal at a belated stage would have no significance. In support of his pleas, learned counsel has placed reliance on Siddhi Vinayak Syntex Private Limited vs Union of India 2017 (352) E.L.T. 455; Special Leave Petition (C) No. 18214 of 2017 Union of India and others vs M/s Siddhi Vinayak Syntex Private Limited, decided on 28.07.2017; Parimal Textiles vs. Union of India, 2018(8), GSTL 361 and that of Hon‟ble Supreme Court in State of Punjab vs. Bathinda District Co-op. Milk P. Union Limited, 2007(217) ELT 325. Per contra, learned counsel for the respondent has submitted that show cause notice dated 20.05.2010 was issued by the Commissioner, Customs Central Excise Commissionerate, Meerut-II which was pending since long. Show cause notice was issued to the petitioner on the basis of investigation conducted by Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice. xx xx xx (11) The Central Excise Officer shall determine the amount of duty of excise under sub-section (10)- (a) within six months from the date of notice where it is possible to do so in respect 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). 13. Similar issue was considered by Gujarat High Court in M/s Siddhi Vinayak Syntex Private Limited's case (supra). Judgments of different High Courts were referred to and it was summed up that delay in conclusion of proceedings pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 witnesses may have to be examined, the record of the case may be very bulky, huge workload, non-availability of an officer, etc. which are genuine reasons for not being able to determine theamount of duty within the stipulated time frame. However, when a matter is consigned to the call book and kept in cold storage for years together, it is not on account of it not being possible for the authority to decide the case, but on grounds which are extraneous to the proceedings. In the opinion of this court, when the legislature in its wisdom has prescribed a particular time limit, the C.B.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28.7.2017. 16. The view expressed in M/s Siddhi Vinayak Syntex Private Limited's case (supra) was subsequently followed by Gujarat High Court in Parimal Textiles' expressed was that where no period of limitation is provided for exercise of any power, any notice issued more than five years thereafter was held to be unreasonable. 19. For the reasons mentioned above, we find that the notices in the present cases having been issued more than decade back and the proceedings having not been concluded within reasonable time, the same deserves to be quashed. The aforesaid reproduction clearly reveals that the subject matter in the present petitions is squarely covered by the ratio of pronouncement in the case of M/s GPI Textiles Limited (supra). With regard to filing of the appeal before the Jammu Kashmir High Court against order dated 28.08.2018 passed by CESTAT, Chandigarh pertaining to supplier of the petitioners (purchaser), it is held that it would have no bearing upon the findings recorded above, keeping in view the peculiar facts circumstances of the case and law laid down referred to above. Moreover, the Jammu Kashmir High Court has not granted any inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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