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TMI Blog2024 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... ness as a sole proprietor in the name of style of "Global Marking". Petitioner is engaged in the business of import and export of saffron. On 10th March 2015, a SCN was issued to Petitioner by Respondent No. 4 to show cause why import duty foregone amounting to Rs. 3,66,360/- should not be demanded under Section 28 of the Customs Act, 1962 along with interest under Section 28AA/AB of the said Act. Petitioner replied on 2nd April 2015 giving detailed written submissions as to why the SCN should be dropped. Petitioner also requested for a personal hearing. Thereafter, for almost about 3 years, no steps were taken for adjudication of the SCN. On 23rd February 2018, Petitioner was informed that Respondent No. 2-Commissioner of Customs has been appointed as Adjudicating Authority for adjudication of the aforesaid SCN. Petitioner was informed that he has not replied to the SCN dated 10th March 2015. Pursuant to the said intimation, Petitioner informed Respondent No. 2 that he has already replied to SCN vide letter dated 2nd April 2015. Copy of the reply dated 2nd April 2015 was also re-filed with Respondent No. 2. A personal hearing was fixed by Respondent No. 2 on 17th April 2018 in fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned proceedings relates to SCN issued in 2015 and although provision of Section 28 (9A) of the Customs Act was not in existence at the time of issuance of SCN but certainly even in the absence of the said provision also, it was mandatory and Respondents were duty bound to inform Petitioner about his case being transferred to "call book", which undisputedly has not been done. It is also important to note that if order is not passed within time provided under Section 28 (9) of the Customs Act then the notice would be justified in believing that SCN has been dropped. 8. Petitioner is justified in relying upon the series of orders passed by this Court, wherein on very similar fact situation, attempt to adjudicate the SCN after a long delay has been quashed. We do not wish to load the present order by referring to all the 30 judgments which are cited by Petitioner. Suffice to observe that none of them have been rebutted by Respondents. However, we reproduce paragraph Nos. 5 to 12 of the decision of this Court in ICICI Home Finance Company Limited Vs. The Union of India, Principal Commissioner of CGST & Cx. Mumbai 2024 (6) TMI 682:- "5. The facts as narrated above are not disputed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic revenue, larger public interest requires that revenue authorities act diligently and expeditiously when adjudicating the same; iii. Diligence would include keeping the answering party informed when a show cause notice is kept in abeyance/transferred to call book,. This serves a two fold purpose, viz., (a) the answering party is put to notice that proceedings are still alive and the answering party can thus safeguard the necessary evidence etc. till such time as the show cause notice is taken up for adjudication, and/or (b) the answering party could at that stage itself contest the show cause notice and/or point out why the same should be taken up for adjudication. iv. Failure to keep the answering party informed about the fate of the show cause notice and delay in adjudicating the same (for no fault of answering party) impinges on procedural faimess and is thus a violation of the principles of natural justice; v. Adjudication proceedings, delayed for more than a decade (for no fault of answering party and without putting answering party on notice for the reason of delay), defeats the very purpose of issuing show cause notice/s and such delayed adjudication is bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents have contended that the impugned notices were transferred to call book as per the circular of the Board, we find that even the Affidavit in Reply does not mention either the date on which the impugned notices were so transferred, nor does it annex a copy of the circular upon which Respondents have placed reliance. The least that was expected from Respondents was that they would have produced a copy of the relevant circular on which reliance has been placed. Another fact that is to be noted is that the circular relied upon by Respondent is dated 2003 and the impugned notices were issued in the year 2008/2009. Hence, absent production of the said circular and/or a proper explanation as to the contents of the same, Respondents contention that the impugned notices had been transferred to call book based thereon is completely unintelligible and mere ipse dixit. Thus, in the facts and circumstances of the present case, we have no hesitation in holding that Petitioner was entirely justified in concluding that Respondents had abandoned the impugned show notices. B. Additionally, even on merit, we find that the impugned order is liable to be quashed and set aside. We find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o specifically sets out that writ jurisdiction can always be invoked and is available to a party when there is any contravention of the principles of natural justice. It is useful to reproduce here paragraph 13 from the judgment of the case of Hover Automotive India Pvt. Ltd. (supra) which in turn relies upon the judgment of the Hon'ble Supreme Court of India in the case of the Assistant Commissioner of State Tax & Others vs M/s Commercial Steel Ltd. dated 3rd September, 2021 passed in Civil Appeal No. 5121 of 2021 and reads thus, viz., 13. In this context, we consider it useful to also refer to paragraphs 11 and 12 of the decision in Commercial Steel Limited (supra) cited by the petitioner. Paragraphs 11 and 12 are quoted below:- "11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue of transfer to call book is still pending in the Apex Court and relying upon the order of the Apex Court in Union of India Vs. Siddhi Vinayak Syntex Pvt. Ltd. 2022 379) ELT 553 (SC) submitted that this Court should not make any observation regarding the show cause notices being transferred to call book and the effect thereof. We are not inclined to adopt the course of action suggested by Ms. Desai. In Siddhi Vinayak Syntex Pvt. Ltd. (supra) which was an SLP filed by Union of India impugning the judgment of the Hon'ble Gujarat High Court in Siddhi Vinayak Syntex Pvt. Ltd. Vs. Union of India 2017 (352) ELT 455 (Guj), the Hon'ble Gujarat High Court has held that the Central Board of Excise and Customs was not empowered under Section 37B of the Central Excise Act, 1944 to issue instructions to the Central Excise Officer to transfer the show cause notices to call book and keep the same in abeyance. In the case at hand, petitioner is not challenging transfer of show cause notices to call book and keeping the same in abeyance, but is only raising a ground that non communication of transfer to call book is fatal to the case of respondents. Therefore, in our view, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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