Sr. No.,CWP No.,Date of show Cause Notice impugned
1,CWP-11860-2021,31.12.2009
2,CWP-11867- 2021,12.03.2010
3,CWP-11941-2021,23.02.2010
(3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount,,
actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which",,
falls short of the amount actually payable in the manner specified under that sub- other connected cases section and the period of one year,,
shall be computed from the date of receipt of information under sub-section (2).,,
(4) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by the reason of-",,
(a) fraud; or,,
(b) collusion; or,,
(c) any wilful mis-statement; or,,
(d) suppression of facts; or,,
(e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person",,
chargeable with the duty, the Central Excise Officer 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) to (7) xx xx xx),,
(7A) Notwithstanding anything contained in sub-section (1) or sub-section (3) or sub-section (4), the Central Excise Officer may, serve,",,
subsequent to any notice or notices served under any of those sub-sections, as the case may be, a statement, containing the details of duty of",,
central excise not levied or paid or short-levied or short-paid or erroneously refunded for the subsequent period, on the person chargeable",,
to duty of central excise, then, service of such statement shall be deemed to be service of notice on such person under the aforesaid other",,
connected cases sub-section (1) or subsection (3) or sub-section (4) or sub-section (5), subject to the condition that the grounds relied upon",,
for the subsequent period are the same as are mentioned in the earlier notice or notices.,,
(8) Where the service of notice is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the",,
period of one year referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), as the case my be.",,
(9) Where any appellate authority or Tribunal or court concludes that the notice issued under sub-section (4) is not sustainable for the,,
reason that the charges of fraud or collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions,,
of this Act or of the rulesmade thereunder with intent to evade payment of duty has not been established against the person to whom the,,
notice was issued, the Central Excise Officer shall determine the duty of excise payable by such person for the period of one year, deeming",,
as if the notice were issued under clause (a) of sub-section (1).,,
(10) The Central Excise Officer shall, after allowing the concerned person an opportunity of being heard, and after considering the",,
representation, if any, made by such person, determine the amount of duty of excise due from such person not being in excess of the amount",,
specified in the notice.,,
(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 it is possible to do so in respect of cases falling other connected cases under subsection,,
(1);,,
(b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under subsection (4) or subsection (5).â€",,
...â€,,
11. The Division Bench of this Court in CWP No.10530 of 2017 titled as 'M/s GPI Textiles Limited vs. Union of India and others' relying upon the,,
view of the Gujarat High Court in the case of 'Siddhi Vinayak Syntex Private Limited vs Union of India', 2017 (352) E.L.T. 455' has held that :-",,
“14. In the aforesaid case, Gujarat High Court had set aside the order passed after a long delay in pursuance to the show cause notice",,
issued.,,
15. The judgment of Gujarat High Court was challenged by the revenue before Hon'ble the Supreme Court by filing Special Leave Petition,,
(C) No. 18214 of 2017 â€" Union of India and others vs M/s Siddhi Vinayak Syntex Private Limited, in which notice has been issued only to",,
the extent as to whether Circular No. 162/73/95-CX dated 14.12.1995, issued by the Central Board of Excise and Customs, Department of",,
Revenue, Ministry of Finance, Government of India, is in conformity/ authorized by the provisions of Section 37-B of the Central Excise Act,",,
1944. The order on merit has been upheld vide order dated 28.7.2017.,,
16. The view expressed in M/s Siddhi Vinayak Syntex Private Limited's case (supra) was subsequently followed by Gujarat High Court in,,
Parimal Textiles' case (supra), where again belated order passed after issuing show cause notice, was set other connected cases aside.",,
17. Section 11A(11) of the Act provides that Cental Excise Officer shall determine the amount of duty within six months in case notice has,,
been under Sub-section 1 thereof, whereas in the case of fraud, collusion, etc., the period prescribed is one year. No doubt, the words",,
'where it is possible to do so' have been used, however, that will not stretch the period to decades as is in the cases in hand.",,
18. In Bhatinda District Co-op. Milk P. Union Limited's case (supra), Hon'ble the Supreme Court upheld a Division Bench judgment of this",,
Court where opinion expressed was that where no period of limitation is provided for exercise of any power, any notice issued more than",,
five years thereafter was held to be unreasonable.,,
19. For the reasons mentioned above, we find that the notices in the present cases having been issued more than decade back and the",,
proceedings having not been concluded within reasonable time, the same deserves to be quashed.â€",,
12. The Apex Court in 'Commissioner of Central Excise vs. Krishna Wax (P) Limited', (2020) 12 SCC 572, while interpreting the same provision has",,
held that -,,
“10. The issuance of Show Cause Notice under Section 11-A also has some significance in the eye of the law. The day the Show Cause,,
Notice is issued, becomes the reckoning date for various issues including the issue of limitation...â€",,
13. Thus, it is clear that in Section 11-A(11), the legislature has other connected cases prescribed a time limit. The Authority(s) are duty bound to",,
abide the same. The expression “where it is possible to do so†does not mean that the time prescribed can be extended perpetually. The time limit,,
cannot be taken to be directory except in a case where the Authority has a reason to offer as an explanation for extending the said time limit. In the,,
present case, no explanation has been offered in the written statement which can be held to be a plausible explanation for not adjudicating upon the",,
Show Cause Notice within the time prescribed.,,
14. So far as the pendency of appeals before Jammu & Kashmir High Court are concerned admittedly the same were filed in 2018. No explanation,,
has been offered in the written statement as to why the Show Cause Notice(s) issued in 2009/2010 could not be adjudicated prior to 2018. The,,
Division Bench of this Court in CWP No.11990 of 2020 titled as 'M/s Mentha & Allied Products Ltd. through its Authorised Representative Satya,,
Narain vs. Commissioner, Central Goods & Service Tax, Chandigarh' has already dealt with the aforesaid issue holding that :-",,
“With regard to filing of the appeal before the Jammu & Kashmir High Court against order dated 28.08.2018 passed by CESTAT,",,
Chandigarh pertaining to supplier of the petitioners (purchaser), it is held that it would have no bearing upon the findings recorded above,",,
keeping in view the peculiar facts & circumstances of the case and law laid down referred to above. Moreover, the Jammu & Kashmir High",,
Court has not granted any interim order in favour of the respondent(s)/ Revenue on the appeal filed after 1 ½ year of passing of order of,,
the Tribunal in case of supplier (seller) of other connected cases goods to the petitioner (purchasers).â€,,
15. Thus, keeping in view the aforesaid position of law, the present writ petitions are allowed. Show Cause Notices Annexure P-1 (in all writ petitions)",,
impugned in the present writ petitions, issued to the petitioners more than 11 years ago, are hereby quashed.",,
16. Ordered accordingly.,,
