TMI Blog2022 (7) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... N NO. 8486 OF 2021 - - - Dated:- 11-7-2022 - K.R. SHRIRAM MILIND N. JADHAV, JJ. Mr. Ashok Singh for Petitioner. Mr. J.B. Mishra i/b Mr. Dhananjay B. Deshmukh for Respondents. P.C. : 1. By consent taken up for hearing at the admission stage itself. 2. Petitioner is impugning an order dated 11th November 2020 passed by Respondent No.2 on various grounds, inter alia, (a) that Respondent No.2 has not considered the orders passed by the Additional Commissioner of Central Excise and Commissioner of Central Excise where they have taken a contrary view; and (b) the adjudication has been made more than 20 years after the show cause notices were issued and therefore, as held by various courts, these are stale notices. The adjudicator, Respondent No.2, should not have proceeded with adjudication. 3. Petitioner is engaged in the manufacture of electrical equipments and parts and holds Central Excise Registration under the Central Excise Act, 1944. Petitioner was paying on regular basis duty from CENVAT Account or from personal ledger account from time to time. Petitioner was manufacturing junction boxes for voltage not exceeding 1000 Volts and blanking plates and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in adjudication. Petitioner referred to some of the judgments in its reply. Petitioner also attended a personal hearing and reiterated its stand. Thereafter, an order dated 11th November, 2020 came to be passed by the Assistant Commissioner of CGST Central Excise which is impugned in this petition. 8. Mr. Mishra submitted that petitioner has also filed an appeal against this order and therefore, this court should not entertain the petition but direct petitioner to persuade the appeal. In normal circumstances, we would have, perhaps, granted the submission made by Mr. Mishra but in this case we do not wish to. We are inclined to exercise our jurisdiction under Article 226 of the Constitution of India because it is a blatant case where petitioner may not get complete justice. The reason why we say this because in the impugned order Respondent No.2 has not dealt with the submissions of petitioner that contrary view has already been taken by the Additional Commissioner and the Commissioner (Appeal) who are both superior officers of Respondent No. 2. There is not even a whisper about these orders in the impugned order. Respondent No.2 has also not dealt with submissions of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in commencing adjudication proceedings, this Court held that if such contentions as to limitation were to be accepted, it would mean that the department can commence adjudication proceedings 10 years, 15 years or 20 years after the original show-cause notice was issued which could not be permitted. The position would have been different had there been any default on the part of the petitioner which contributed to the long delay. In such a case, petitioner would not be permitted to take advantage of his own wrong but that was not even the case of the department. 20. The above view of this Court has been consistently followed in subsequent cases. In Sanghavi Reconditioners Private Limited Vs. Union of India, 2018 (12) GSTL 290, a Division Bench of this Court examined a challenge to such delayed adjudication. In that case show-cause notice was issued on 28.03.2002 and after more than 15 years, notice of hearing was issued on 07.09.2017. On behalf of the respondents it was contended that the show-cause notice was kept dormant in a call book because of related litigation in the Supreme Court. Ultimately, after the litigation was over, the show-cause notice was retrieved fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate Ltd. as well, the period of 17 long years was found to be entirely unreasonable. Concededly in the present case, the show- cause notice was issued on 28th March 2002. The petitioners forwarded their reply to the show-cause notice after receipt thereof on 14th September, 2002. Concededly, there was a hearing in the year 2004. 17. The first affidavit-in-reply filed in this Petition by the Assistant Commissioner of Customs does not dispute this factual position at all. All that it tries to impress upon the Court is the seriousness of the allegations and prays for an opportunity to adjudicate the issue even now. The affidavit emphasizes that the petitioner has voluntarily deposited a sum of Rs.3,33,37,598.92/-. That was duty liability calculated in the year 1999 and much before the issuance of the show-cause notice. It may be that the amount was not received in full and final settlement of the Department's demand. However, there was an equal obligation, once the show-cause notice was issued on 28th March, 2002, to have adjudicated it expeditiously. The reasons assigned from paragraph 14 onwards would indicate that there were personal hearings in relation to all the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudication has to be held, it will be impossible for them to trace out all the records and equally, contact those officials who may not be in their service any longer. Thus, they would have no opportunity, much less reasonable and fair, to defend the proceedings. That is equally a balancing factor in the facts and circumstances of the present case. 18. In the light of the above discussion, we are of the firm opinion that insofar as the petitioner before us is concerned, the Revenue/Department has not been able to justify its lapse in not adjudicating the show-cause notice issued on 28th March, 2002 for more than 15 years. There may be reasons enough for the Revenue to retain some matters like this in the call book, but those reasons do not find any support in law insofar as the present petitioner's case is concerned. Merely because there are number of such cases in the call book does not mean that we should not grant any relief to the petitioner before us. 21. Firstly, this Court held that a show-cause notice issued a decade back should not be allowed to be adjudicated upon by the revenue merely because there is no period of limitation prescribed in the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in call book would advance the cause of transparency in revenue administration. It was held as under:- 9. In the present facts, it is the case of the petitioner that because of long delay, papers and proceedings relevant to meet the show-cause notice are not available. Thus, seriously hampering the petitioners to appropriately meet the show-cause notice. This delay in taking up the adjudication of the show- cause notice (in the absence of any fault on the part of the party complaining) is a facet of breach of principles of natural justice. It impinges on procedural fairness, in the absence of the party being put to notice that the show-cause notices will be taken up for consideration, after some event and / or time, when it is not heard in a reasonable time. In the absence of the above, particularly as in this case, long delay has resulted in papers being misplaced. The reasonable period may vary for case to case. However, when the notices are being kept in abeyance (by keeping them in the call book as in this case), the Revenue should keep the parties informed of the same. This serves two fold purposes - One it puts the party to notice that the show- cause notice is still al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be a reasonable period. Petitioner cannot be faulted for taking the view that respondents had decided not to proceed with the show-cause notices. An assessee or a dealer or a taxable person must know where it stands after issuance of show-cause notice and submission of reply. If for more than 10 years thereafter there is no response from the departmental authorities, it cannot be faulted for taking the view that its reply had been accepted and the authorities have given a quietus to the matter. As has been rightly held by this Court in Raymond Limited (supra), such delayed adjudication wholly attributable to the revenue would be in contravention of procedural fairness and thus violative of the principles of natural justice. An action which is unfair and in violation of the principles of natural justice cannot be sustained. Sudden resurrection of the show-cause notices after 13 years, therefore, cannot be justified. 11. In this case, Respondent No.2 has conveniently failed and neglected to even refer to the orders passed by its superior officers where contrary view has been taken. Respondent No.2 has also conveniently not dealt with the submissions of petitioner that delay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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