TaxTMI 
TaxTMI 
2023 (10) TMI 449
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....etting aside the impugned Notice dated 06.06.2022 bearing No. C. No. V (65) 03/Adjn./KCPL/Bok(Ran-II)/2014/3167 (Annexure-2) issued by the Superintendent (Adjudication) O/o Principal Commissioner of Central Goods and Services Tax and Central Excise, Central Revenue Building, 5-A, Mahatma Gandhi Road (Main Road), Ranchi - 834001, the Respondent No. 3; (iii) Pending final hearing of this Petition, the Respondents, their servants, agents and subordinates be restrained from giving any effect and/or further effects to and/or acting on the basis of Petitioner in the present writ Petition under Article 226/Article 227 of the Constitution of India is challenging the legality and validity of impugned Show Cause Notice dated 24.12.2014 (Annexure-1) and impugned notice dated 06.06.2022 (Annexure-2) pending the disposal of this application. 2. The petitioner in the present writ application is challenging the legality and validity of the impugned show cause notice dated 24.12.2014 (Annexure-1), issued by the Respondent No. 2 in purported exercise of powers under proviso to Section 73(1) of the erstwhile Chapter V of the Finance Act, 1994. The petitioner has further challenged the legality an....
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....words "where it is possible to do so" under Section 73(4B) of Chapter V of the Finance Act, 1994 does not extend the time limit perpetually to an indefinite period but is intended to deal with extra ordinary situation only based on reasonable ground. In case, there is no extra ordinary - situation, the said time limit would provide the period of limitation for completion of adjudication. (B) Section 73(4B) of the Chapter V of the Finance Act, 1994 recognizes the well settled principle that delay in adjudication of a dispute causes prejudice to parties and is contrary to Article 14 of the Constitution of India, 1950. (C) In case where no time limit has been prescribed, the action should be completed within a reasonable time period. The maximum time period under Chapter V of the Finance Act, 1994 is five years under Section 73(1)/73(4). However, in the instant case, the impugned show cause notice is pending adjudication for more than 7 years. In support of his contention, learned counsel has relied upon the following judgments:- (i) K.B. Nagur, M.D. (Ayurvedic) Vs. Union of India reported in (2012) 4 SCC 483 [Para 38] (ii) Government of India Vs. Citedal Fine Pharmaceuticals....
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....d for personal hearing before passing an adjudication order is a part of principle of natural justice given to the petitioners. Due to some administrative constraint emanated after major changes in the indirect taxation laws in the past years, the said adjudication order got delayed as huge legacy cases were to be decided. The Principal Commissioner who conducted the personal hearing earlier had been transferred before passing the order. The present adjudicating authority, before deciding the case, ordered the Superintendent (Adjn.) to issue a personal hearing notice, which is a part of the principle of natural justice given to the petitioners. The Hon'ble Supreme Court in the case of CCE, New Delhi Vs M/s Bhagsons Paint Industry (India), reported in 2003 (158) ELT 129 (SC), has held that there is no statutory bar to adjudicate the matter even after lapse of nine years after the issue of show cause notice and the adjudication pertains only to the actual levy of the duty which is due to the department and not to any levy of interest and penalty. He lastly submits that the Demand Cum Show Cause Notice have been issued by the competent authority, and the petitioner has an opportunit....
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.... But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation." Mr. Pati reiterated that the Hon'ble Apex Court in catena of judgments has held that the writ application can be entertained in the exceptional circumstances where there is a breach of fundamental rights or violation of principle of natural justice or on the point of jurisdiction or the vires of any statute or delegated legislation is under challenge and the instant case does not fail in any of these exceptions. 7. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits and the documents annexed therein, it transpires that the impugned show cause notice was issued vide letter dated 24.12.2014, thereafter the petitioner filed its reply to the said notice vide letter dated 04.10.2016 and the respondent No. 2 fixed the matter for personal hearing on 05.10.2016, on which date the petitioner duly appeared and made submissions. Thereupon, ....
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....9) the Customs Act, 1962. The period of limitation of 6 months or 1 year under Section 73(4B) of the Chapter V of the Finance Act, 1994 be extended to more than seven years as is done in the instant case. In the case of K.M Sharma Vs. ITO reported in (2002) 4 SCC 339 it is held by the Hon'ble Apex Court that the provisions of a fiscal statute more particularly one regulating the period of limitation must receive a strict construction as the law of limitation is intended to give certainty and finality to legal proceedings. "14. A fiscal statute, more particularly, on a provision such as the present one regulating period of limitation must receive strict construction. Law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to a litigant for an indefinite period on future unforeseen events. Proceedings, which have attained finality under existing law due to bar of limitation cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings, which had already been concluded and attained finality. The amendment to sub- section (1) of S....
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....nd policy of the Act. In Kirkness v. John Hudson & Co. Ltd. [(1955) 2 All ER 345 : 1955 AC 696 : (1955) 2 WLR 1135] Lord Reid pointed out as to what is the meaning of "ambiguous" and held that: (All ER p. 366 C-D) "A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning." It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose [(1952) 2 SCC 237 : AIR 1952 SC 369 : 1953 SCR 1] had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circ....
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....n fact in Pradeep Kumari case [(1995) 2 SCC 736] the three learned Judges, while enumerating the conditions to be satisfied, whereafter an application under Section 28-A can be moved, had categorically stated (SCC p. 743, para 10) "the person moving the application did not make an application to the Collector under Section 18". The expression "did not make an application", as observed by this Court, would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. We, accordingly answer Question 1(a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894." In the case of J.K. Cotton Spinning and Weaving Mills Co.....
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....it is held by the Gujarat High Court that 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 with the specified time frame, it should be so done. Similar views have been held in the case of Siddhi Vinayak Put. Ltd Vs. UOI reported in 2017 (352) E.L.T. 455 (Guj.) "19. Reliance was placed upon the decision of the Supreme Court in the case of Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225, and more particularly to the contents of paragraph 86 thereof, wherein the Supreme Court has laid down certain propositions which are meant to serve as guidelines. Reference was made to clause (3)(c) thereof, wherein the Court has observed that the concerns underlying the right to speedy trial from the point of view of the accused are (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. It was submitted that the said decision though rendered in the context of the provisions of the Code of Criminal Procedure would also be applicable to the facts of the....
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....aking up adjudication after more than 7 years from the date of issuance of the impugned Show Cause Notice dated 24.12.2014 in the instant case is unreasonable, arbitrary, oppressive, and violates Article 14 of the Constitution and such proceedings stand vitiated due to inordinate and unreasonable delay. In the case of CCE Vs. Krishna Wax Private Ltd reported in (2020) 12 SCC 572 (S.C) [Para 10] it is held by the Hon'ble Apex Court that the issuance of Show Cause Notice under Section 73 also has some significance in the eyes of law. The day the Show Cause Notice is issued, becomes the reckoning date for various issues including the issue of limitation. In the case of Siddhi Vinayak (P) Ltd. Vs. UOI reported in 2017 (352) E.L.T. 455 (Guj.) it is held by the Hon'ble Gujrat High Court that delay in deciding the proceedings without bringing it to the notice of the Petitioner that the case was transferred to the call book and was therefore pending causes immense prejudice and hence revival of proceedings after long gap without disclosing any reason of delay is in complete breach of the principles of natural justice. Alternatively, where no time limit has been prescribed the action sho....
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....after a considerable delay, notice for personal hearing has been issued fixing the personal hearing in November, 2015. Thus, there is a delay of more than one and a half year even after the show cause notice came to be retrieved from the call book. However, in the interregnum the aforesaid events have taken place on account of which the petitioner could not be served with the notice of hearing and the second respondent has proceeded to decide the matter ex parte." 14. At this stage, it is also necessary to observe that where the statute does not prescribe any period of limitation within which power has to be exercised by the authorities, in such circumstances also the proceedings must be concluded within a reasonable period of time. The maximum period of limitation provided under the special statute should be considered to be the reasonable period within which the adjudication order should be concluded. In the instant case period of more than 7 years from the issuance of impugned Show Cause Notice on 24-12-2014 cannot be said to be reasonable period for taking up/concluding adjudication proceedings. Section 73(1)/ 73(4) of Chapter V of the Finance Act, 1994 provides 5 years as a m....