TMI Blog2023 (2) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... 11A of the CEA, 1944 alleging less payment of duty due to misclassification. The respondents had kept the impugned show cause notice and ten other SCNs as indicated in the chart above in the call book on the ground that the matter was sub-judice. However, from the pleadings on record and also from the averments made in the counter affidavit, it appears that none of the conditions as enumerated in the CBIC circular / guidelines relied upon by the respondents and also by the petitioner stood satisfied for transferring the matter to the call book. Similar issue perused in Punjab and Haryana High Court in the case of M/S GPI TEXTILES LIMITED VERSUS UNION OF INDIA AND OTHERS [ 2018 (9) TMI 25 - PUNJAB HARYANA HIGH COURT ] where the show cause notices issued under Section 11 A of the Central Excise Act 1944 were kept pending for 16 years. The present case is a gross one as the impugned show cause notice are kept pending since 9th December 1993 for 29 years and even if some explanation on the part of the respondents relating to pendency of Civil Appeal No. 3793 of 2001 till 05.05.2004 is accepted, there is no justification for not proceeding upon the impugned show cause notice f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assembling, erecting and testing electronic overhead cranes (for short EOC ) for installation in the main steel plant of the petitioner at Jamshedpur. In terms of the work order, the growth shop of the petitioner manufactured the said cranes and cleared the same to the petitioner. A show cause notice was issued to the petitioner by the Collector of Central Excise, Jamshedpur on 8th February 1984 alleging that the growth shop has removed electronic overhead crane without payment of duty. It was further alleged that the growth shop wrongly availed the benefit of exemption notification no. 118/75-CE dated 30.04.1975 as the goods cleared were not parts of crane but a fully functional crane. At the relevant point of time, excise duty was payable at different rates on parts of crane and crane, which are as under :- Goods Chapter Heading Rate of Duty Crane 8431 20% ad valorem Parts of Crane 8426 15% ad valorem 4. Petitioner submitted his reply and rebutted the allegations but was held ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2001 was decided by the Apex Court by partly setting aside the order of Tribunal and remitting the matter to the Tribunal for fresh examination. No adjudication proceedings were initiated against the petitioner pursuant to the impugned show cause notice dated 9th December 1993 till the judgment delivered by the Apex Court on 5th May 2004. In this background, it is contended that after a lapse of 29 years a notice for personal hearing has been issued to the petitioner on 30th November 2022 fixing the date of hearing as 15th December 2022. Petitioner made a request for adjournment of personal hearing on 15th December 2022 and accordingly the matter was adjourned for eight weeks. Another notice was issued for personal hearing by respondent no. 4 on 23rd December 2022 fixing the date of hearing on 15th February 2023. Therefore, the petitioner has been compelled to approach this Court. 6. Learned Senior Counsel for the petitioner has referred to the contents of the counter affidavit filed by the respondents pursuant to the previous order and contested the stand of the respondents inter alia on the following grounds : Learned Senior Counsel for the petitioner submits that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 review was carried out by the competent authority. Referring to the Circular dated 10th March 2017, Clause 9.4 it is also submitted that whenever a case has been transferred to the call book a formal communication should be issued to the noticee. It is submitted that various courts have disapproved of such an approach to revive an adjudication proceedings after an inordinate delay in view of the conditions stipulated under Section 11 A (11) of the CEA. The expression if it is possible to do so used in Section 11A(11) cannot by any stretch of imagination be extended for a period of 29 years to adjudicate upon such a show-cause notice. Any such stipulation in a statute, which does not prescribe an outer period of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (F) and 173(G) of the Central Excise Rules, 1944 read with Section 11 A of CEA, 1944 demanding differential duty of central excise so short paid by the petitioner during the material period. Besides the above, there were 10 SCNs/SODs issued upon the petitioner for subsequent period. The particulars of all 11 SCNs/SODs have been furnished in the form of a tabular chart under paragraph 8 of the counter affidavit which is also extracted hereunder : Sl. SCN Reference Period Amount (in Rs.) 1. MP-14/TGS/DD/92/970 dated 09.12.1993 June 1993 to Nov.1993 1,67,42,847 2. MP-14/TGS/DD/92/511 dated 30.06.1994 Dec. 1993 to May 1994 4,22,53,259 3. MP-4/TGS/DD/95/1127 dated 03.01.1995 June 1994 to Nov.1994 2,00,97,070 4. MP-13/TGS/DD/95/552 dated 03.07.1995 Dec. 1994 to May 1995 82,90,798 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for personal hearing in respect of all 11 SCNs/SODs, as requested by the petitioner were granted by the adjudicating authority and duly communicated to the Superintendent (ADJM), CGST and Central Excise, Jamshedpur vide letter dated 30th November 2022. The petitioner has been allowed eight weeks time on his request and the date of personal hearing has been fixed on 15th February 2023 in respect of all the subjects 11 SCNs/SODs. After consideration of the case records SCNs/SODs, defence reply and judicial pronouncement and submissions written and oral to be made during personal hearing on 15th February 2023, the case will be decided accordingly. Learned counsel for the respondents submits that these proceedings have been rightly revived and are being adjudicated in accordance with the relevant provisions of Central Excise Act, 1944. Hence, request of the petitioner for quashing the subject SCN, as well as the letter for fixing personal hearing are unwarranted and does not hold merit. 11. Learned counsel for the respondents State submits that these impugned demand notices are in respect of short levy or short payment of duty of central excise in terms of Section 11A of the CEA an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... majority decision dated 8th December 2000 held that evidence was not produced by the assessee to show that cranes were cleared by them in knocked down condition. The impugned goods cleared by them were classifiable as crane parts under sub-heading 8431.00 of CETA 1985. Petitioner again went in appeal before the Apex Court in Civil Appeal No. 3973 of 2001 which was also allowed vide judgment dated 5th May 2004 in the following terms: This Court allowed the appeals of the appellants against the decision of the Patna High Court, set aside the orders of the respondent as well as of the High Court and held that no excise duty is payable on the E.O.T. cranes as assembled. In result we set aside this part of the order made by the Tribunal and remit the matter to it for fresh examination in the light of the order of this Court. 14. It is further submitted that in I.A. No. 2 in Civil Appeal No. 3973 of 2001 preferred by the noticee before the Apex Court for clarification of the judgment dated 5th May 2004 vide order dated 31st January 2005 it was held The prayer made in the application does not fall within the purview of clarification. The application is rejected. (Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the appellate authority i.e. learned CESTAT. 17. We have given anxious consideration to the submission of learned counsel for the parties, taken note of the relevant material facts pleaded and borne from the records and also the CBIC circulars cited by the parties and the decisions relied upon by learned counsel for the petitioner. 18. The facts as borne out from the pleadings on record need no repetition. The impugned show cause is of 9th December 1993 (Annexure-5) issued upon the petitioner asking them to show cause as to why the appropriate excise duty amounting to Rs. 1,67,42,847.30 be not imposed upon him under the provisions of Rules 9(B), 52A, 173(B), 173(F) and 173(G) of Central Excise Rules, 1944 and Section 11A of the CEA, 1944 alleging less payment of duty due to misclassification. The respondents had kept the impugned show cause notice and ten other SCNs as indicated in the chart above in the call book on the ground that the matter was sub-judice. However, from the pleadings on record and also from the averments made in the counter affidavit, it appears that none of the conditions as enumerated in the CBIC circular / guidelines relied upon by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard vide its 16354$Circular No.162/73/95-CX.3, dated 14.12.1995 specified the following categories of cases which can be transferred to call book viz.: 1. Cases in which the Department has gone in appeal to the appropriate authority. 2. Cases where injection has been issued by Supreme Court/High Court/CEGAT, etc. 3. Cases where audit objections are contested. 4. Cases where the Board has specifically ordered the same to be kept pending and to be entered into the call book. In circular dated 28th May 2003 : 3. It is further directed that a one-time comprehensive review of all the pending call book cases will be done by respective CCEs. The Chief Commissioner may monitor such review periodically in their respective zones. The progress report of the call book cases should continue to mention in the MTR as well as in the monthly statements of the progress achieved in Key Result Areas . In circular dated 10th March 2017 : 9.4 Intimation of Call Book cases to notice: A formal communication should be issued to the notice, where the case has been transferred to the call book. 19. In this regard, it is pertinent to refer to the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-05-2016] from the date of notice, where it is possible to do so, in respect of cases falling under the proviso to sub-section (4) or sub- section (5)]. xxx xxx xxx 20. The issue at hand has crossed the attention of the various jurisdictional High Courts such as the Bombay High Court and the Punjab and Haryana High Court of which the judgments rendered in the cases of Eastern Agencies Aromatics Private Limited Vs. Union of India Ors,. para-14 to 17 and Harkaran Dass Vedpal Vs. Union of India, para-3, 9 and 11 to 15 have been specifically relied upon by the petitioner. 21. Petitioner has also relied upon the recent judgment of the Apex Court, in Special Leave to Appeal (Civil) No. 12376 of 2022 dated 29th July 2022 arising out from a judgment of Punjab and Haryana High Court wherein the show cause notice remain unadjudicated for 11 years. In the peculiar facts and circumstances of the case the Apex Court refused to interfere in the matter and the special leave petition was dismissed. The decision in the case of Eastern Agencies Aromatics Private Limited (Supra) relates to the delay of nine years in adjudication of a show cause notice under Section 28 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents never informed the Petitioner about the show cause notice being kept in the call book and that due to passage of time the relevant papers may not be available and it will not be possible to defend the show cause notice. Petitioner is also right in contending that even otherwise pendency of proceedings was not in respect of the Petitioner. Hence it is obvious that revival of show cause notice will seriously prejudice the Petitioner. 17. In the present case, reasons given by the Respondents for the delay caused in seeking to revive the show cause notice do not constitute any reasonable ground and the delay caused is not sustainable, as the same is in breach of the principles of natural justice. Though in Affidavit-In-Reply it is sought to be contented that the period of limitation prescribed by the amending Act, 2018 is not applicable to the present show cause notice of the year 2013, nothing was argued before us in support of this contention. In our view, even otherwise the powers of such nature of adjudicating the show cause notice are required to be exercised within reasonable time. We do not find any justification for the inaction on the part of the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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