TMI Blog2023 (6) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... ER, CENTRAL GST AND CENTRAL EXCISE, JAMSHEDPUR, ASSISTANT COLLECTOR, CENTRAL EXCISE DIVISION 1, JAMSHEDPUR, SUPERINTENDENT, CENTRAL EXCISE, ADITYAPUR, RANGE III, SUPERINTENDENT (ADJUDICATION) , CENTRAL GST AND CENTRAL EXCISE, JAMSHEDPUR [ 2023 (2) TMI 893 - JHARKHAND HIGH COURT ] where it was held that 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. After going through the aforesaid judgment, it clearly transpires that in paragraph No. 9, the show cause notices involved in all these writ applications have been mentioned in tabular form and this Court has taken note of the pendency of show cause notices and/or the writ petition pending for adjudication. It further transpires that was disposed of on 14.02.2023 in presence of the parties and in the open Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an, J. Since common issue is involved in all these writ applications, as such all are heard together and disposed of by this common order. 2. The petitioner in all these writ applications have initially challenged the respective show cause notices (SCN) of the year 1994 to 1997 and the respective notices of personal hearing issued in the year 2022, i.e., after a lapse of about 27 to 29 years. During pendency of these writ applications the respondent-Department vide its common Order in Original (OIO) dated 17.2.2023; confirmed the demand as made in the respective show-cause notices. The petitioner thus filed interlocutory application in respective applications which was allowed by this Court and the common Order in Original dated 17.2.2023 confirming the demand in the respective show-cause notices has been impugned. 3. It may be noted at this stage itself that the personal hearing notices was issued in respect of 11 show cause notices; against one such notice dated 9.12.1993 for the period June, 1993 to November, 1993, the petitioner had moved this Court in W.P.T No. 308 of 2023. This Court vide its order dated 14.2.2023 quashed the show cause notice along with the notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. The remaining petitions are identical in all aspects except for the period in dispute involved for which a tabular chart had already been cited in the preceding paragraph. Petitioner Company is primarily engaged in the manufacture of Iron and Steel, and in order to carry out its manufacturing activity, it has developed a separate wing, popularly known as 'Growth Shop' (Maintenance Shop), through which Petitioner used to get some of its Plants and Machinery manufactured/assembled/installed. The petitioner issued work order to its Growth Shop for manufacturing, assembling, erecting and testing Electronic Overhead Cranes (for short 'EOC') for installation in the main Steel Plant of the petitioner at Jamshedpur. At the relevant point of time, excise duty was payable at different rates on parts of Crane and Crane, which were as under:- Grades Chapter Heading Rate of Duty Crane 8431 20% ad valorem Parts of Crane 8426 15% ad valorem 5. Earlier, a Show Cause Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving parts of Cranes and not the Crane. The SCN dated 13.8.1990 (pertaining to the period Jan 1989 to Jan 1990) was adjudicated against the petitioner and being aggrieved the petitioner moved before the learned CEGAT, Kolkata. 7. During pendency of the matter before CEGAT, the petitioner was issued 11 further show cause notices in respect of the same dispute between the years 1994 to 1997 pertaining to different periods of dispute. The details of the same have already been cited in paragraph-3 herein above. W.P (T) No. 826 of 2023 relates to SCN No. MP- 13/TGS/DD/95/1127 which was issued on 3.1.1995 for the period June 1994 to November 1994. As aforesaid, altogether 11 show cause notices in respect of the same dispute between the years 1994 to 1997 were issued. On 25.1.1995, petitioner filed its reply to the said show cause notice. 8. On 09.02.2000, during the pendency of the appeal before CEGAT, the Hon'ble Supreme Court allowed Civil Appeal No. 782 of 1987 filed by the petitioner company (i.e., the first round of litigation). However, on 8.12.2000, the Appeal of the petitioner before the CEGAT against SCN dated 13.8.1990 was dismissed. (Second round of litigation). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal show cause notice as well as the personal hearing notice; both were quashed. The said order was dictated in open court in presence of the counsel for the Respondents. Upon allowing of W.P.(T) No. 308 of 2023, the counsel for the petitioner mentioned the remaining 10 writ petitions for early hearing since the matter was listed before the Respondent on 15.2.2023 for personal hearing. On 15.02.2023, the petitioner wrote to the Respondent authorities requesting for an adjournment since writ petition against one of the show cause notices had been allowed and that the remaining 10 writ petitions were expected to be taken up shortly. The request letter given by the petitioner for adjournment is taken note of in the record of personal hearing. Nevertheless, on 17.02.2023, common impugned order in original (OIO) has been passed imposing excise duty and penalty upon the petitioner with respect to all the SCN (details of which have already been given in Para- 3 herein above). On 20.02.2023, I.A.s was filed for challenging the impugned order in original (OIO) dated 17.2.2023. On 27.02.2023, three weeks' time was granted to the respondents to file counter affidavit. On 27.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did not respond to the same and only asked for adjournment and that is the reason that the OIO has been passed. (b) The rule of call book is well established in tax matters. Whenever any issue is pending for adjudication before the Hon ble Apex Court, the other cases relating to the same issue sent for the call book as such the contention of the petitioner that the respondents were having no authority to keep the matters pending and refer the same to call book does not sustain. (c) No case can be quashed only on the ground that the decision in that matter is pending for long. Further, no time lines are prescribed to decide any SCN; as such, adjudicating any matter solely depend on the quasi judicial authority as and when the subject case is ripe and may be taken for decision. d) The Respondent Department is contemplating to challenge the order passed by this Court in W.P.(T) No. 308 of 2023. Relying upon the aforesaid submissions he contended that all these writ applications are liable to be dismissed. 13. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Civil Appeal No. 3973 of 2001, there is no basis or explanation on the part of the respondents to have kept the show cause notice in its call book without proceeding for its adjudication after the judgment rendered in that case by the Apex Court on 5th May 2004. None of the other two conditions as indicated by the respondents at Clause 3 and 4 quoted above also stand satisfied in the present case. The respondents have not enclosed any document to show that prior approval of the Collector of excise was taken before keeping the case in the call book. There seems to be no reference of any periodic review of the call book, though the relevant CBIC circulars such as the circular dated 30th March 1998 and 20th May 2003 specifically required the Commissioners to review the cases transferred to call books on a monthly basis in circumstances where the department was confronted with a situation where provisional assessment cases were kept pending for several years. The extract of the relevant circulars are quoted here under :- In circular dated 30th March 1998 : While the Board had issued instructions to Commissioners to review the cases transferred to call books on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (5) Where, during the course of any audit, investigation or verification, it is found that any duty [has not been levied or paid or has been] short - levied or short - paid or erroneously refunded for the reason mentioned in clause (a) or clause (b) or clause (c) or clause (d) or clause (e) of sub-clause (4) but the details relating to the transactions are available in the specified records, then in such cases, the Central Excise Officer shall within a period of five years from the relevant date, serve a notice on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice along with interest under section 11AA and penalty equivalent to fifty per cent of such duty. xxx xxx xxx (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 years, the contentions raised by the Respondent Nos. 1 and 2 are unreasonable and not supported by any statutory provisions. 15. We have perused the consistent view taken by this Court, that the concerned Authority is under an obligation to adjudicate upon the show cause with expediency. In our view, unreasonable and unjustified delay in adjudication of the show cause notice is in contravention of procedural fairness and is violative of principles of natural justice. 16. We find sufficient merit in the submissions made on behalf of the Petitioner that delay in adjudication of the show cause notice constitutes breach of principle of natural justice. In the present case, show cause notice issued in the year 2013 was replied by the Petitioner well within time in the year 2014 itself. The Petitioner 14 has specifically pleaded that the previous Director of the Petitioner, who was looking after the day to day management including the import of goods expired on 19th May 2019 and that no other person was aware about the proceedings of the show cause notice. There is no dispute that the Petitioner was never intimated with respect to adjudication on the show cause notice or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the petitioner. Adjudication of such a show cause notice after 29 years would be contrary to the mandate of Section 11A(11) of the CEA 1944 and would lead to unreasonable and arbitrary results. Such proceedings therefore stands vitiated due to inordinate and unreasonable delay and are accordingly fit to be quashed. Accordingly, 15 the impugned show-cause notice dated 9 th December 1993 is quashed. The notices of personal hearing dated 30th November 2022 and 23rd December 2022 are also quashed. 23. The writ petition is allowed in the manner and to the extent indicated herein above. Pending interlocutory application seeking stay is closed. 14. After going through the aforesaid judgment, it clearly transpires that in paragraph No. 9, the show cause notices involved in all these writ applications have been mentioned in tabular form and this Court has taken note of the pendency of show cause notices and/or the writ petition pending for adjudication. It further transpires that W.P.(T) No. 308 of 2023 was disposed of on 14.02.2023 in presence of the parties and in the open Court but for the reason best known to the respondent-Department just after couple of days on 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding on the Revisional Authority. In such circumstances, to brand the orders of the Assessing Authority as suffering from illegality and impropriety appears to us to be not only unjustified but also demonstrates thorough lack of understanding of the principle regulating exercise of suo motu revisional power by a quasi-judicial authority apart from being in breach of the principle of judicial discipline, while confronted with orders passed by a superior Tribunal/Court. We are inclined to the view that it is not the Assessing Authority's orders but those passed by the Revisional Authority, which suffer from a patent illegality. Thus, we hold that judicial propriety and judicial discipline required the respondent to await the adjudication of the writ petitions when facts of the present writ petitions were pari-materia to the facts of W.P.(T) No. 308 of 2023 save and except the date of issuance of show cause notices and date of issuance of personal hearing. When this Court was hearing the similar issue; the respondents should not have continued the proceeding on the same subject. 15. As a matter of fact, the Commissioner has not acted in a bonafide manner and has attempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispensation of justice by the courts. In the instant case, when the Court was set to examine the grievance of the petitioner regarding non-release of the goods despite the order-in-original, what was sought to be done was to present the Court with an order passed in the midst of such examination keeping the Court totally in the dark saying that the order-in-original suffers from illegality or impropriety directing the subordinate authority to apply to the Commissioner (Appeals) to set aside the order-in- original and then contending that the writ petition should be dismissed because of the subsequent development or that the petitioner should be relegated to the appellate forum to contest the subsequent order. As pointed out above, this amounts to interfering with the administration of justice and is thus not at all acceptable. A view may be taken that such an order should be ignored as it is contumacious. 26. The above aspect also requires a serious consideration and therefore has been re-stated. When a matter is brought before the Court or the Court is examining the matter, respondents cannot initiate or proceed with a parallel proceeding on its own to render the court scru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oming of the respondent authorities fall within the definition of State under Article 12 of the Constitution of India. The respondents have a duty to act fairly and reasonably even in the matters of taxation, the revenue must act rational. Reference in this regard may be made to the case of Asst. Commissioner, Anti Evasion Commercial Taxes Vs. Amtek India Ltd. Reported in (2007) 11 SCC 407 para-15 which is given below:- 15. In this case though the action of the assessing officer concerned, in overlooking the documents produced coming to the conclusion about manipulation appears to be totally uncalled for and without any reasonable basis. This is a case where the officer should have been more careful and should not have acted in a manner as if he was a bloodhound and not a watchdog of Revenue. It is unfortunate that in large number of cases, orders totally bereft of rationality are being passed. They do not in any manner serve public interest, much less the interest of Revenue. 18. The respondents have also again tried to rake up the issue of transfer of such notices (SCN) to call book, when such issue has been authoritatively decided by this Court in W.P.(T) No. 308 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is not questioning the correctness of the concept of Call Book. Rather it is the Petitioner's contention that none of the conditions stipulated for transfer of notice of call book stood satisfied. Reliance is placed on the judgment rendered by the Delhi High Court in Nanu Ram Goyal (supra) para- 28 is quoted hereinbelow:- 28- In the facts of the present case it is not necessary for this court to examine the validity of the procedure of placing the matter in the 'Call Book' as it is apparent that there is a gross delay on the part of respondent no. 1 and there are no justified reasons for the same. 20. The Respondents have also stated that the Department has decided to approach the Hon'ble Supreme Court against the judgment dated 14.2.2023 rendered in W.P.(T) No. 308 of 2023. It is however submitted by the learned ASGI that no such Special Leave Petition has been filed as on date. Even otherwise, mere filing of any Special Leave Petition does not amount to a stay of the order of the High Court. The order of the High Court must be given effect to until and unless the same is stayed by an order of the Hon ble Supreme Court. This is well settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple or logic flowing from the abovesaid decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of appeal reopens the issues decided and this Court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction. 21. The Respondents have also contended that old cases of Petitioner's company TML Drivelines (now Tata Motors Ltd.) had also been taken out of the call book and have been adjudicated vide order in original dated 24.1.2023 by dropping the demand. But the Petitioner did not challenge the same. The said justification given by the Respondent reflects non-application of mind. 22. Lastly the respondent s contention that the petitioner should have come forward for adjudication of the show cause notices, inasmuch as, opportunity of hearing was given to the petitioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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